[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Proposed Rules]
[Pages 70093-70096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33483]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. ; I.D. 110998F]
RIN 0648-AJ33


Fisheries of the Northeastern United States; Amendment 7 to the 
Atlantic Sea Scallop Fishery Management Plan

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

[[Page 70094]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes regulations to implement proposed Amendment 7 to 
the Fishery Management Plan (FMP) for the Atlantic Sea Scallop Fishery. 
Amendment 7 and these proposed regulations would reduce the fishing 
mortality rate in the Atlantic sea scallop fishery to eliminate 
overfishing and rebuild the biomass in accordance with the requirements 
of the Sustainable Fisheries Act (SFA). Amendment 7 and these proposed 
regulations would substantially reduce the level of fishing for 
Atlantic sea scallops in the exclusive economic zone (EEZ) through 
fishing year 2008 by revising the fishing effort reduction schedule 
presently in effect by significantly reducing the allowable days-at-sea 
(DAS) for Atlantic sea scallop vessels starting with fishing year 2000. 
A less severe reduction is proposed for fishing year 1999. In addition, 
Amendment 7 and these proposed regulations would implement an annual 
monitoring process, increase the types of management measures that 
would be put into effect through framework adjustments, and continue 
two Mid-Atlantic closed areas until March 1, 2001. The intent of 
Amendment 7 and these proposed regulations is to eliminate overfishing 
and rebuild the stocks.

DATES: Comments must be received on or before January 29, 1999.

ADDRESSES: Comments on this proposed rule should be sent to Jon C. 
Ratters, Acting Regional Administrator, 1 Blackburn Drive, Gloucester, 
MA 01930. Mark the outside of the envelope, ``Comments on Proposed Rule 
for Amendment 7.''
    Copies of Amendment 7, its regulatory impact review (RIR), initial 
regulatory flexibility analysis (IRFA), the final supplemental 
environmental impact statement (FSEIS), and the supporting documents 
for Amendment 7 are available from Paul J. Howard, Executive Director, 
New England Fishery Management Council, 5 Broadway, Saurus, MA 01906-
1036.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 
978-281-9273.

SUPPLEMENTARY INFORMATION:

Proposed Management Measures

    Amendment 7 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 November 18, 1998 
(63 FR 64032). The amendment would: (1) Redefine overfishing; (2) 
revise the existing fishing mortality reduction schedule through 
fishing year 2008 to reduce the allowable DAS for Atlantic sea scallop 
vessels in order to rebuild the scallop stock within 10 years; (3) 
establish an annual monitoring and review process to adjust management 
measures to meet the stock rebuilding objectives; (4) continue the Mid-
Atlantic closed areas in order to protect high concentrations of 
juvenile scallops; and (5) allow the following management measures to 
be implemented and adjusted through framework adjustment: Closed areas, 
changes in the overfishing definition, size restrictions, aquaculture 
projects, and four DAS management options, including leasing DAS. The 
most contentious feature of Amendment 7 is the proposed stock 
rebuilding schedule that would set the allocation for fishing year 1999 
at 120 DAS. Under the existing schedule, DAS would be 108 days for 
fishing year 1999. The allocation for fishing year 2000 would be 
reduced to 51 DAS and would remain low for the remainder of the 10-year 
rebuilding period. The intent of Amendment 7 is to eliminate 
overfishing and rebuild the stock consistent with new requirements of 
the Magnuson-Stevens Act. Amendment 4 was implemented in 1994 and 
included restrictions on DAS that were to be phased in over a 7-year 
rebuilding period as the primary means of achieving fishing mortality 
reductions. In 1997, the Council's Plan Development Team (PDT) 
evaluated the current FMP's effectiveness in achieving the target 
fishing mortality rate. The PDT concluded that further reductions in 
DAS (to 80 DAS) than originally scheduled (to 108 days) would be 
necessary for the 1998 - 1999 fishing years. The Council voted against 
the PDT recommendation to reduce DAS and proposed an interim action to 
close two Mid-Atlantic areas until March 26, 1999. These closures serve 
to protect concentrations of juvenile scallops in order to achieve 
spawning stock biomass targets.
    The current fishing mortality rate is 1.05 in the Mid-Atlantic, 
0.51 on Georges Bank, and 0.94 for the overall scallop resource. The 
recommended fishing mortality rate to reduce overfishing and rebuild 
biomass in accordance with the SFA requirements is currently estimated 
at 0.24 for the resource.
    To achieve the necessary mortality rate reductions, proposed 
Amendment 7 would continue reduction of fishing effort through 
significant reductions in DAS. For fishing year 1999 (which begins on 
March 1, 1999), DAS would be set at 120 for full-time, 48 for part-
time, and 10 for occasional vessels.
    The 120 DAS for fishing year 1999 is greater than the PDT's 1997 
estimation of the DAS that would be needed to achieve the target 
mortality rate levels previously set by Amendment 4 (80 DAS). The 
Council decided to propose an intermediate level of 120 DAS for fishing 
year 1999 in order to minimize adverse social and economic impacts on 
the scallop fleet during the first year of the revised schedule, to 
allow the Council to further develop and consider rotational scallop 
closed areas, and to allow industry and the Council time to develop a 
vessel buyback program. Setting the DAS level at an intermediate level 
in the first year, means greater reductions in DAS during years 2-10. 
In year two, beginning on March 1, 2000, DAS would be reduced to 51 for 
full-time vessels and proportionately for the other categories. DAS are 
projected to remain below this level until year 10 of the program 
(2008). Annual monitoring and adjustment would allow increases in the 
DAS allocated if mortality and biomass levels needed to achieve a 10-
year rebuilding schedule were attained.
    If the effective date of the final rule implementing Amendment 7 
falls after the start of the fishing year on March 1, 1999, fishing may 
continue. However, DAS used by a vessel on or after March 1, 1999, will 
be counted against any DAS allocation the vessel ultimately receives 
for the fishing year beginning March 1, 1999, through February 29, 
2000.
    Amendment 7 would redefine overfishing to mean:

    If stock biomass is equal to or greater than MSY, as measured by 
the NMFS sea scallop survey weight per tow index of sea scallops age 
3 and older, overfishing occurs when fishing mortality exceeds MSY, 
currently estimated at 0.24. If stock biomass is below MSY, 
overfishing occurs when fishing mortality exceeds the level that has 
a 50-percent probability to rebuild stock biomass to MSY in 10 
years. The stock is in an overfished condition when stock biomass is 
below 1/4 MSY, and overfishing occurs when fishing mortality is 
above zero.

    Amendment 7 would continue the Virginia Beach and Hudson Canyon 
scallop closures until March 1, 2001, originally closed on an interim 
basis from April 3, 1998, through September 27, 1998 (63 FR 15324, 
March 31, 1998), and extended again on September 28, 1998, through 
March 26, 1999 (63 FR 51862, September 29, 1998). The intent of this 
action is to afford continued protection to the resource by protecting 
high concentrations of 4-year-old

[[Page 70095]]

scallops. The benefits of these two closures will be evident through a 
more balanced age structure of the scallop stock. Also, significant 
reductions in fishing mortality and increases in yield per recruit are 
possible from the relatively small closures. Fishers pursuing species 
other than scallops will not be excluded from the closed areas.
    Amendment 7 proposes an annual review by the Scallop PDT to 
evaluate the condition of the scallop resource and the effectiveness of 
the measures in achieving the stock-rebuilding objectives. The second 
review process scheduled for 1999 specified by Amendment 4 would be 
eliminated. In addition, the following framework measures are proposed: 
(1) Modifications to the overfishing definition; (2) leasing of DAS 
(provided that the Council holds a full set of public hearings); (3) 
scallop size restrictions; (4) approval of aquaculture projects; (4) 
modifications to Mid-Atlantic closed areas; (5) modifications to the 
demarcation line for DAS monitoring; (6) allocate DAS according to gear 
type; (7) implement closed areas to lessen DAS reductions; and (8) 
implement closed areas to increase scallop size.

Classification

    At this time, NMFS has not determined that the amendment that this 
rule would implement is consistent with the Magnuson-Stevens Act and 
with other applicable laws. NMFS, in making that determination, will 
take into account the data, views, and comments received during the 
comment period.
    The Council prepared a FSEIS for the amendment; a notice of 
availability for the Draft EIS was published on June 26, 1998 (63 FR 
34871). The proposed action will substantially reduce the level of 
fishing in the Atlantic sea scallop fishery in the EEZ.
    This proposed rule has been determined to be significant for 
purposes of E.O. 12866.
    To comply with the requirements of the Regulatory Flexibility Act 
(SFA), the Council prepared an IRFA that describes the impact this 
proposed rule, if adopted, would have on small entities.
    The Council initially considered three alternatives: (1) A baseline 
or status quo alternative based upon management measures implemented 
under Amendment 4 to the FMP, (2) a 7-year rebuilding plan, and (3) a 
10-year rebuilding plan. After receiving comments on the DEIS for 
Amendment 7, the Council decided to add a new option as its preferred 
alternative that would still have an ambitious rebuilding schedule in 
years 2 through 10 of the plan but not in year one compared to the 7 
and 10-year rebuilding plan. Under the baseline or status quo 
alternative, the DAS for full-time vessels would have been reduced from 
142 in this current fishing year to 80 in year one to comply with 
Amendment 4. Instead, under the preferred alternative, the DAS for 
full-time vessels would be 120 in year one, a measure that would reduce 
the first year impacts on small entities compared to any of the other 
alternatives considered. The Council hopes that this will allow enough 
time for a buyout plan to be implemented for some vessels wishing to 
leave the sea scallop fishery (i.e., the total DAS available to the 
fishery would be divided among less vessels beginning in March 2000). 
Also, during the first year of effectiveness of the preferred 
alternative enough data might be collected in areas currently closed to 
harvest of groundfish and sea scallops to allow for some rotational, 
seasonal openings of these areas to harvest scallops. This approach is 
designed to minimize economic impacts on small entities, especially in 
the first year that the Amendment is effective. Recognizing the 
limitations on implementing the Council's recommendations under the 
Magnuson-Stevens Act, NMFS seeks comments on these alternatives and any 
others that may achieve the objectives of the rulemaking while 
minimizing its economic impact on small entities.
    The proposed action would reduce the overall scallop revenues of 
the fleet by approximately 38 percent in the year 2000 (compared to the 
baseline) and by about 10 percent in the year 2007. A change in DAS is 
assumed to reduce a vessel's landings almost in the same proportion. 
Ex-vessel prices may increase to some extent as landings decrease. Of 
the full-time vessels, 184 of the 197 vessels derived more than 60 
percent of their income from scallops in 1997. Of the 31 part-time 
vessels, 23 derived at least 31 percent of their income from scallops 
in 1997.
    In the 1997 fishing year, there were only 26 vessels with limited 
access occasional permits, and only 5 of these vessels landed any 
scallops. These vessels did not have much dependence on the scallop 
fishery, and derived less than 5 percent of their revenues from 
scallops. Therefore, the proposed regulations are not expected to 
significantly affect occasional scallop permit holders. Except in 1999, 
more than 2 percent of the full-time vessels may be forced to cease 
operations each year from the years 2000 through 2007.
    If the draft Monkfish FMP is approved and implemented about the 
same time as Amendment 7 to the Atlantic Sea Scallops FMP, scallop 
vessels will be restricted to landing their monkfish while using their 
scallop DAS. The percentage of total annual revenues from monkfish 
landed while not on scallop trips is 8.3 percent for full-time dredges, 
7.9 percent for part-time dredges, and 0.2 percent for occasional 
dredges. For scallop trawlers it is 12 percent, 2 percent for full-time 
vessels, 4 percent for part-time vessels and 6.1 percent for occasional 
vessels. A copy of this analysis is available from the Council (see 
ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 14, 1998.
Andrew A. Rosenberg,
Deputy 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. Section 648.14, paragraphs (a)(110) and (a)(111) are added to 
read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (110) Fish for, possess or retain sea scallops in or from the areas 
described in Sec. 648.57.
    (111) Transit or be in the areas described in Sec. 648.57 with 
scallop gear that is not properly stowed as required in Sec. 648.57.
* * * * *
    3. Section 648.53 is amended by revising the last sentence and 
chart of paragraph (b) as follows:


Sec. 648.53  DAS allocations.

* * * * *
    (b) DAS allocations.  * * * The annual allocations of DAS for each 
category of vessel for the fishing years indicated are as follows:

[[Page 70096]]



 
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                 DAS category                  1999-2000  2000-2001  2001-2002  2002-2003  2003-2004  2004-2005  2005-2006  2006-2007  2007-2008  2008-+
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Full-time....................................       120         51         49         46         45         34         35         38         36       60
Part-time....................................        48         20         19         18         18         14         14         15         17       24
Occasional...................................        10          4          4          4          4          3          3          3          4        5
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* * * * *
    4. In Sec. 648.55, revise paragraph (a) and the first sentence of 
paragraph (b), redesignate paragraph (h) as paragraph (j), redesignate 
paragraphs (c) through (g) as (d) through (h), add new paragraph (c), 
in redesignated paragraph (d), further redesignate paragraph (d)(12) as 
(d)(21) and add new paragraphs (d)(12) through (d)(20), and add new 
paragraph (i) to read as follows:


Sec. 648.55  Framework specifications.

    (a) Annually, or upon request from the NEFMC, the Regional 
Administrator will provide NEFMC with information on the status of the 
scallop resource.
    (b) Within 60 days of receipt of that information, the NEFMC PDT 
shall assess the condition of the scallop resource to determine the 
adequacy of the total allowable DAS reduction schedule, described in 
Sec. 648.53 (b), and other management measures, to achieve the stock-
rebuilding objectives. * * *
    (c) Based on this review, the NEFMC PDT shall recommend total 
allowable DAS reduction schedules and develop options necessary to 
achieve the FMP goals and objectives, which may include a preferred 
option. The NEFMC PDT must demonstrate through analysis and 
documentation that the options it develops are expected to meet the 
Scallop FMP goals and objectives. The range of options developed by the 
NEFMC PDT may include any of the management measures in the Scallop 
FMP, including, but not limited to the categories described in 
Sec. 648.53 (d).
    (d) * * *
    (12) Modifications to the overfishing definition.
    (13) VMS Demarcation Line for DAS monitoring.
    (14) DAS allocations by gear type.
    (15) Temporary leasing of scallop DAS requiring full public 
hearings.
    (16) Scallop size restrictions, except a minimum size or weight of 
individual scallop meats in the catch.
    (17) Aquaculture enhancement measures and closures.
    (18) Closed areas to lessen the amount of DAS reductions.
    (19) Closed areas to increase the size of scallops caught.
    (20) Modifications to the opening dates of closed areas.
* * * * *
    (i) If the Regional Administrator concurs in the NEFMC's 
recommendation, a final rule shall be published in the Federal Register 
on or about February 1 of each year. If the NEFMC fails to submit a 
recommendation to the Regional Administrator by December 1 that meets 
the FMP goals and objectives, the Regional Administrator may publish as 
a proposed rule one of the options reviewed and not rejected by the 
NEFMC, provided that the option meets the FMP objective and is 
consistent with other applicable law. If, after considering public 
comment, the Regional Administrator decides to approve the option 
published as a proposed rule, the action will be published as a final 
rule in the Federal Register.
* * * * *
    5. Section 648.57 is revised to read as follows:


Sec. 648.57  Closed areas.

    (a) Hudson Canyon South Closed Area. Through March 1, 2001, no 
vessel may fish for, possess, or retain sea scallops in or from the 
area known as the Hudson Canyon South Closed Area (copies of a chart 
depicting this area are available from the Regional Administrator upon 
request) unless all gear on board is properly stowed and not available 
for immediate use in accordance with the provisions of Secs. 648.23(b) 
and 648.81(e). Further, vessels not fishing in the scallop DAS program 
and fishing for species other than scallops or not in possession of 
scallops in this area must stow scallop dredge gear in accordance with 
the provisions of Secs. 648.23(b) and 648.81(e). The Hudson Canyon 
South Closed Area is defined by straight lines connecting the following 
points in the order stated:

 
------------------------------------------------------------------------
                      Point                        Latitude    Longitude
------------------------------------------------------------------------
H1..............................................   39 30' N.   73 10' W.
H2..............................................   39 30' N.   72 30' W.
H3..............................................   38 30' N.   73 30' W.
H4..............................................   38 40' N.   73 50' W.
------------------------------------------------------------------------

    (b) Virginia Beach Closed Area. Through March 1, 2001, no vessel 
may fish for, possess, or retain sea scallops in or from the area known 
as the Virginia Beach Closed Area (copies of a chart depicting this 
area are available from the Regional Administrator upon request) unless 
all gear on board is properly stowed and not available for immediate 
use in accordance with the provisions of Secs. 648.23(b) and 648.81(e). 
Further, vessels not fishing in the scallop DAS program and fishing for 
species other than scallops or not in possession of scallops in this 
area must stow scallop dredge gear in accordance with the provisions of 
Secs. 648.23(b) and 648.81(e). The Virginia Beach Closed Area is 
defined by straight lines connecting the following points in the order 
stated:

 
------------------------------------------------------------------------
                      Point                        Latitude    Longitude
------------------------------------------------------------------------
V1..............................................   37 00' N.   74 55' W.
V2..............................................   37 00' N.   74 35' W.
V3..............................................   36 25' N.   74 45' W.
V4..............................................   36 25' N.   74 55' W.
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[FR Doc. 98-33483 Filed 12-15-98; 10:39 am]
BILLING CODE 3510-22-F