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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 960910252-6252-01; 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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 5 to the

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

amendment would: Close a 9 mi2 (23.31 km2) site to mobile

fishing gear and partially close the site to non-mobile gear for an 18-

month period, and temporarily exempt certain vessels from fishing

regulations. The intended effect is to support an aquaculture research

project and prevent conflicts between fishing gear and project

equipment for the limited duration of the research project.

DATES: Comments on the proposed rule must be received on or before

November 1, 1996.

ADDRESSES: Comments on the proposed rule, Amendment 5, or its

supporting documents should be sent to Dr. Andrew A. Rosenberg,

Director, Northeast Regional Office, NMFS, 1 Blackburn Drive,

Gloucester, MA 01930. Mark the outside of the envelope ``Comments on

Sea Scallop Plan.''

Comments regarding burden-hour estimates for collection-of-

information requirements contained in this proposed rule should be sent

to Dr. Andrew A. Rosenberg, at the address above, and to the Office of

Information and Regulatory Affairs, Office of Management and Budget

(OMB), Washington, D.C. 20502 (Attention: NOAA Desk Officer).

Copies of Amendment 5, its regulatory impact review, initial

regulatory flexibility analysis, 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.

y Affairs, Office of Management and Budget

(OMB), Washington, D.C. 20502 (Attention: NOAA Desk Officer).

Copies of Amendment 5, its regulatory impact review, initial

regulatory flexibility analysis, 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.

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

508-281-9273.

SUPPLEMENTARY INFORMATION: Regulations implementing the FMP are found

at 50 CFR part 648. The objectives of the FMP are: (1) To restore adult

stock abundance and age distribution; (2) to increase yield-per-recruit

for each stock; (3) to evaluate plan research, development and

enforcement costs; and (4) to minimize adverse environmental impacts on

sea scallops. This amendment would address these objectives indirectly

by implementing regulations in support of a sea scallop aquaculture

project that may yield information applicable to improving conservation

and management of this species.

Proposed Management Measures

Amendment 5 to the FMP was prepared by the New England Fishery

Management Council (Council). A notice of availability for the proposed

amendment was published in the Federal Register on August 29, 1996, (61

FR 45395). The amendment proposes to establish a 9 mi2 (23.31

km2) area closure approximately 12 mi (22.22 km) southwest of the

island of Martha's Vineyard, MA, for 18 months, during which time a

scallop aquaculture project sponsored by NMFS under the Saltonstall-

Kennedy grant program would take place. This area is hereafter called

the Sea Scallop Experimental Area.

This action would allow some vessels participating in the project

to receive exemptions from current fishing regulations. Eleven fishing

vessels and two research vessels would participate in the project

research and activity

llop aquaculture project sponsored by NMFS under the Saltonstall-

Kennedy grant program would take place. This area is hereafter called

the Sea Scallop Experimental Area.

This action would allow some vessels participating in the project

to receive exemptions from current fishing regulations. Eleven fishing

vessels and two research vessels would participate in the project

research and activity. Scientific research vessels conducting

scientific research are exempt from fishing regulations implemented

under the Magnuson Fishery Conservation and Management Act (Magnuson

Act). However, fishing vessels engaged in project activities must

receive written authorization in the form of an experimental fishing

permit (EFP) from the Director, Northeast Regional, NMFS (Regional

Director) to be exempted from any of the regulations. Activities that

may be exempted include, but are not limited to: Fishing within the Sea

Scallop Experimental Area, using fishing gear that does not conform to

the regulations, or possessing scallops when not fishing under a days-

at-sea (DAS) allocation. This requirement for an EFP differs from the

Council's proposed amendment but is necessary to ensure consistency

with and enforceability of the new regulations under Sec. 600.745

regarding scientific research and exempted fishing activities.

This action would prohibit fishing with gillnet and mobile gear,

i.e., trawls

and dredges, within the Sea Scallop Experimental Area. Other fixed gear

such as lobster pot, longline, handgear, and any other gear determined

by the Regional Director not likely to interfere with the research

project, would be allowed in the area under a special registration

program administered by the Regional Director. The purpose of the

registration program is to inform vessel operators of the location of

the research equipment and to provide a means to communicate potential

conflicts between fishery and project activities

ined

by the Regional Director not likely to interfere with the research

project, would be allowed in the area under a special registration

program administered by the Regional Director. The purpose of the

registration program is to inform vessel operators of the location of

the research equipment and to provide a means to communicate potential

conflicts between fishery and project activities. Fishers authorized to

fish in the Sea Scallop Experimental Area with the allowed gear may

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

to set fishing gear a certain minimum distance from research project

activities. At least 2 weeks notice would be provided to vessel

operators to relocate fishing gear. All vessels would be allowed to

transit the area at any time, provided their fishing gear is properly

stowed.

These restrictions on fishing are necessary because mobile gear

could inadvertently destroy expensive grow-out or monitoring equipment.

Although this closure would be temporary and would not create any

permanent rights or interests at the experimental site, the success of

the experiment is dependent on gear restrictions within the area,

particularly for mobile and gillnet gear. The impacts of the closure

are expected to be small, because the amount of fish landed

commercially from this area is small compared to the total commercial

landings in the region. Some current uses of the area by mobile gear

operators, gillnet fishers, and scallopers would be affected by the 18-

month closure period. The estimates of lost revenue due to loss of

multispecies landings is approximately $6,000. This would be offset by

the benefits accrued by fishing vessels participating in the research

project that would be compensated through the harvesting and sale of

scallops at the conclusion of the project

gear

operators, gillnet fishers, and scallopers would be affected by the 18-

month closure period. The estimates of lost revenue due to loss of

multispecies landings is approximately $6,000. This would be offset by

the benefits accrued by fishing vessels participating in the research

project that would be compensated through the harvesting and sale of

scallops at the conclusion of the project. New information on sea

scallop enhancement, harvest gear and habitat interactions, open ocean

cage engineering and growth rates of transferred juvenile brood stock

in both cage culture and open bottom culture may provide the tools

needed to expand the resource base for the future.

Vessels authorized to participate in project activities would be

exempt from the requirement to fish under a DAS allocation if a trip is

conducted exclusively within or transiting to and from the Sea Scallop

Experimental Area, or during the portion of a fishing trip used to

transport project specimens from the fishing grounds to the area.

Rather than attempting to monitor the portion of a fishing trip that a

vessel should be exempt from DAS while transporting specimens, fishing

vessels having DAS allocations that participate in the project activity

would be credited with 2 DAS to account for this time. Time away from

port that is used exclusively for project activities within the

experimental area or transiting to and from the area would also be

exempted from the DAS requirements.

Classification

vessel should be exempt from DAS while transporting specimens, fishing

vessels having DAS allocations that participate in the project activity

would be credited with 2 DAS to account for this time. Time away from

port that is used exclusively for project activities within the

experimental area or transiting to and from the area would also be

exempted from the DAS requirements.

Classification

Section 304(a)(1)(D)(ii) of the Magnuson Act requires that the

regulations proposed by a Council be published within 15 days of the

receipt of the amendment and regulations. At this time, NMFS has not

determined that the amendment these rules would implement is consistent

with the national standards, other provisions of the Magnuson Act, and

other applicable law. NMFS, in making that determination, will take

into account the information, views, and comments received during the

comment period.

This proposed rule has been determined to be significant for the

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

issue arising out of a legal mandate under the Magnuson Act, in that it

may be viewed as setting a precedent for establishing future

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 regarding the proposed rule as

follows:

sue arising out of a legal mandate under the Magnuson Act, in that it

may be viewed as setting a precedent for establishing future

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 regarding the proposed rule as

follows:

I certify that this attached proposed rule issued under

authority of section 304(a) of the Magnuson Fishery Conservation and

Management Act will not have a significant economic impact on a

substantial number of small entities. The proposed rule would

establish a nine square mile site approximately twelve miles south

of Martha's Vineyard as an experimental use area for 18 months. The

area would be closed to fishing with mobile gear that might

interfere with an experimental and demonstration project involving

sea scallop research, enhancement and aquaculture to be conducted by

scientific and technical experts in cooperation with fishermen.

The proposed action will not have any significant effects on a

substantial number of small entities because: (1) The few

groundfish, sea scallop or lobster vessels that may have fished in

the area with mobile gear would be able to redirect their effort to

areas adjacent to the experimental area so that ex-vessel revenues

for these vessels should not change, (2) no vessels are expected to

cease operations as a result of the closure, and (3) compliance

costs are not expected to change for any vessels. The total average

annual revenues for groundfish in this area from 1985 through 1991

were $6,000, the area is low in abundance of sea scallops, and

limited pot fishing for lobsters will still be allowed in the area.

the Regional Director determined that

fishing activities conducted under this rule are not likely to

adversely affect endangered or threatened species or critical habitat.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: September 16, 1996.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 648 is

proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

follows:

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

2. In Sec. 648.14, paragraph (a)(89) is added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *

(89) Fish in or transit the Sea Scallop Experimental Area defined

in

Sec. 648.56(a)(1), as described in Sec. 648.56(a)(2) and (a)(3).

* * * * *

3. Section 648.56 is added to read as follows:

Sec. 648.56 Scallop research project.

(a)(1) Sea scallop experimental area. From [insert date 30 days

after date of publication of the final rule for this action through

date 18 months after such date], no fishing vessel or person on a

fishing vessel may fish in or transit the area known as the Sea Scallop

Experimental Area, as defined by straight lines connecting the

following points in the order stated, except as described in paragraphs

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

Point Latitude Longitude

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.

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

may fish in the Sea Scallop Experimental Area:

ing the

following points in the order stated, except as described in paragraphs

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

Point Latitude Longitude

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.

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

may fish in the Sea Scallop Experimental Area:

(i) With pot gear and traps, if such vessel has been issued an EFP

under paragraph (a)(4)(i)(A) of this section;

(ii) With longline gear, if such vessel has been issued an EFP

under paragraph (a)(4)(i)(A) of this section;

(iii) Fishing with handgear;

(iv) With gear determined by the Regional Director not likely to

interfere with a scallop aquaculture research project sponsored by

NMFS, if such vessel has been issued an EFP under paragraph

(a)(4)(i)(A) of this section; or

(v) If such vessel has been issued an EFP under paragraph

(a)(4)(i)(B) of this section to participate in the scallop aquaculture

research project sponsored by NMFS.

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

of fishing in the Sea Scallop Experimental Area under paragraph (a)(2)

of this section may transit such area provided that their gear is

stowed in accordance with the provisions of Sec. 648.81(e).

(4) Experimental fishing permits. (i) The Regional Director may

issue an EFP under the provisions of Sec. 648.12 to:

(A) Any vessel to fish within the Sea Scallop Experimental Area

with the gear specified in paragraph (a)(2)(i), (a)(2)(ii), and

under paragraph (a)(2)

of this section may transit such area provided that their gear is

stowed in accordance with the provisions of Sec. 648.81(e).

(4) Experimental fishing permits. (i) The Regional Director may

issue an EFP under the provisions of Sec. 648.12 to:

(A) Any vessel to fish within the Sea Scallop Experimental Area

with the gear specified in paragraph (a)(2)(i), (a)(2)(ii), and

(a)(2)(iv) of this section. Vessels receiving EFPs 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 restrictions specified in the EFP.

(B) Any vessel participating in the scallop aquaculture research

project sponsored by NMFS to fish within the Sea Scallop Experimental

Area, to use fishing gear that does not conform to the regulations, and

to possess scallops when not fishing under a DAS allocation. The

Regional Director may also restore up to 2 DAS, per year, to vessels

collecting and transporting undersized scallops to the area. The

Regional Director may exempt vessels from other regulatory provisions

if the exemptions are necessary to project operations and consistent

with paragraph (a)(4)(iii) of this section.

(ii) A vessel with an EFP authorizing it to participate in the

scallop aquaculture research project sponsored by NMFS or to use

exempted gear in the Sea Scallop Experimental Area must carry the EFP

on board the vessel.

(iii) The Regional Director may not issue an EFP unless it is

determined to be consistent with the objectives of the FMP, the

provisions of the Magnuson Act, and other applicable law and that

issuing the EFP 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.

.

(iii) The Regional Director may not issue an EFP unless it is

determined to be consistent with the objectives of the FMP, the

provisions of the Magnuson Act, and other applicable law and that

issuing the EFP 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 EFP for a vessel to fish

within the Sea Scallop Experimental Area must be in writing to the

Regional Director and be submitted at least 30 days before the desired

effective date of the EFP. 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 Coast Guard 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.

[FR Doc. 96-24130 Filed 9-17-96; 1:00 pm]

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