Fisheries of the Exclusive Economic Zone Off Alaska; Scallop Fishery off Alaska; Amendment 3

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679

[Docket No. 980402084-8166-02; I.D. 032398B]

RIN 0648-AJ51

Fisheries of the Exclusive Economic Zone Off Alaska; Scallop

Fishery off Alaska; Amendment 3

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to implement Amendment 3 to the

Fishery Management Plan for the Scallop Fishery off Alaska (FMP), which

delegates to the State of Alaska (State) the authority to manage all

aspects of the scallop fishery, except limited access. This final rule

repeals all Federal regulations governing the scallop fishery off

Alaska, except for the scallop vessel moratorium program. This action

is necessary to eliminate duplicative regulations and management

programs at the State and Federal levels and is intended to further the

goals and objectives of the FMP.

DATES: Effective July 14, 1998.

ADDRESSES: Copies of Amendment 3 and the Environmental Assessment/

Regulatory Impact Review (EA/RIR) prepared for Amendment 3 are

available from the NMFS Alaska Region, P.O. Box 21668, Juneau, AK

99802, Attn: Lori J. Gravel, or by calling the Alaska Region, NMFS, at

907-586-7228.

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

[email protected].

SUPPLEMENTARY INFORMATION: NMFS and the State of Alaska manage the

scallop fishery off Alaska pursuant to the FMP. The North Pacific

Fishery Management Council (Council) prepared the FMP pursuant to the

Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-

Stevens Act). Federal regulations governing the scallop fishery appear

at 50 CFR parts 600 and 679. State regulations governing the scallop

fishery appear in the Alaska Administrative Code (AAC) at 5 AAC Chapter

38--Miscellaneous Shellfish.

The Council submitted Amendment 3 for Secretarial review on March

26, 1998, and a Notice of Availability of the amendment was published

March 31, 1998 (63 FR 15376), with comments on the FMP amendment

invited through June 1, 1998. NMFS published a proposed rule to

implement Amendment 3 on April 16, 1998 (63 FR 18863), with comments on

the proposed rule invited until June 1. No comments were received on

the FMP amendment or the proposed rule by the end of the comment

periods.

Based on a review of the FMP amendment, proposed rule, EA/RIR, and

applicable State laws, the Administrator, Alaska Region, NMFS,

determined that Amendment 3 is necessary for the conservation and

management of the scallop fishery off Alaska and that it is consistent

with the Magnuson-Stevens Act and other applicable laws.

Management Background and Need for Action

The history of the scallop fishery off Alaska and the events

leading up to the development of the joint State-Federal management

regime under Amendment 1 to the FMP are discussed in detail in the

proposed rule (63 FR 18863, April 16, 1998) and in the EA/RIR prepared

for this action (see ADDRESSES). Amendment 1 established a joint State-

Federal management regime under which NMFS implemented Federal scallop

regulations that duplicate most State scallop regulations, including

definitions of scallop registration areas and districts, scallop

fishing seasons, closed waters, gear restrictions, efficiency limits,

crab bycatch limits, scallop catch limits, inseason adjustments, and

observer coverage requirements. This joint State-Federal management

regime was designed as a temporary measure to prevent unregulated

fishing in Federal waters until changes in the Magnuson-Stevens Act

would enable the Council to delegate management of the fishery to the

State.

While the joint State-Federal management regime established under

Amendment 1 has enabled NMFS to reopen the Exclusive Economic Zone to

fishing for scallops, it has proven to be cumbersome in practice. Every

management action, including inseason openings and closures, must be

coordinated so that State and Federal actions are simultaneously

effective. NMFS must draft and publish in the Federal Register inseason

actions that duplicate every State inseason scallop action. State

scallop managers are now constrained in their ability to implement

management decisions rapidly because they must coordinate each action

with NMFS and provide sufficient lead-time for publication of the

action in the Federal Register.

The only purpose of maintaining duplicate regulations at the State

and Federal level is to prevent unregulated fishing by vessels not

registered under the laws of the State. The State-Federal management

regime established under Amendment 1 is no longer necessary to prevent

unregulated fishing for scallops in Federal waters because the

Sustainable Fisheries Act of 1996, which amended the Magnuson-Stevens

Act, now provides authority for the Council to delegate to the State

management responsibility for the scallop fishery in Federal waters off

Alaska. The statutory requirements for delegation of fisheries

management

[[Page 38502]]

authority to a state were presented in the preamble to the proposed

rule (63 FR 18863, April 16, 1998).

Repeal of Federal Scallop Regulations Under Amendment 3

Amendment 3, adopted by the Council by a 10 to 1 vote, delegates to

the State the authority to manage all aspects of the scallop fishery in

Federal waters, except limited access, including the authority to

regulate vessels not registered under the laws of the State. Section

306(a)(3)(B) of the Magnuson-Stevens Act, as amended, requires that

such a delegation of authority be made through an FMP amendment and be

approved by a three-quarters majority vote of the Council.

This final rule to implement Amendment 3 removes subpart F of 50

CFR part 679. Subpart F contains all the Federal regulations specific

to the scallop fishery off Alaska, with the exception of the scallop

vessel moratorium program, which is set out under permit requirements

at June 26, 1998, Sec. 679.4(g). Amendment 3 and this final rule change

the Federal scallop vessel moratorium program established under

Amendment 2 to the FMP by simplifying scallop management in the Federal

waters off Alaska through the elimination of unnecessary duplication of

regulations at the State and Federal levels.

This final rule also makes minor changes to Sec. 679.1(h) to

accommodate the delegation of management authority to the State and

adds a definition of Scallop Registration Area H (Cook Inlet) to the

definitions at Sec. 679.2 because this definition, previously set out

in subpart F, is necessary for the scallop vessel moratorium program.

Changes Made From the Proposed Rule

This final rule removes definitions for ``Dive'' and ``Scallop

dredge'' under the definition of ``Authorized fishing gear'' at

Sec. 679.2 because these definitions are no longer required. In

addition, the final rule eliminates cross references to scallop

regulations at Sec. 679.7(h) and Sec. 679.22(g). No additional changes

were made from the proposed rule.

Classification

This action repeals duplicative Federal regulations that serve no

Federal management purpose and have the potential to confuse the

regulated community. In addition, this action does not significantly

revise management measures for the regulated community in a manner that

would require time to plan or prepare for those revisions. For these

reasons, the Assistant Administrator for Fisheries, NOAA, finds that

good cause exists to waive the 30-day delayed effectiveness period for

this action under 5 U.S.C. 553(d).

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 that this rule would not have a

significant economic impact on a substantial number of small entities.

No comments were received regarding this certification. As a result, a

regulatory flexibility analysis was not prepared.

This final rule has been determined to be not significant for the

purposes of E.O. 12866.

The Administrator, Alaska Region, NMFS determined that fishing

activities conducted under this rule would not affect endangered and

threatened species listed or critical habitat designated pursuant to

the Endangered Species Act in any manner not considered in prior

consultations on the scallop fisheries off Alaska.

List of Subjects in 50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: July 13, 1998.

David L. Evans,

Deputy Assistant Administrator for Fisheries, 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 50 CFR part 679 continues to read as

follows:

Authority: 16 U.S.C. 773 et seq., 1801 et seq., and 3631 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 the United States (see subpart

A of this part).

(2) State of Alaska laws and regulations that are consistent with

the FMP and with the regulations in this part apply to vessels of the

United States that are 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, removing the paragraphs

(1) Dive and (11) Scallop dredge, and renumbering paragraphs (2)

through (10) and (12) through (14) as paragraphs (1) through (12),

respectively; and a definition ``Scallop Registration Area H Cook

Inlet'' is added, in alphabetical order, to read as follows:

Sec. 679.2 Definitions.

* * * * *

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

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

and-line, trawl, hand troll gear, and power troll gear:

* * * * *

Scallop Registration Area H (Cook Inlet) means all Federal waters

of the GOA west of the longitude of Cape Fairfield (148 deg.50' W.

long.) and north of the latitude of Cape Douglas (58 deg.52' N. lat.).

* * * * *

4. In Sec. 679.3, paragraph (g) is added to read as follows:

Sec. 679.3 Relation to other laws.

* * * * *

(g) Scallops. Additional regulations governing conservation and

management of scallops off Alaska are contained in Alaska Statutes A.S.

16 and Alaska Administrative Code at 5 AAC Chapter 38.

Sec. 679.7 [Amended]

5. In Sec. 679.7, paragraph (h) is removed and paragraph (i) is

redesignated as paragraph (h).

Sec. 679.22 [Amended]

6. In Sec. 679.22, paragraph (g) is removed and reserved.

Secs. 679.60-679.65 (Subpart F) [Removed]

7. Subpart F, consisting of Secs. 679.60-679.65, is removed.

[FR Doc. 98-19115 Filed 7-14-98; 1:45 pm]

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