[Federal Register Volume 60, Number 157 (Tuesday, August 15, 1995)]
[Rules and Regulations]
[Pages 42070-42078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19971]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 673
[Docket No. 950428123-5193-02; I.D. 042595A]
RIN 0648-AIOO
Scallop Fishery off Alaska; Closure of Federal Waters to Protect
Scallop Stocks
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 a Fishery Management
Plan for the Scallop Fishery off Alaska (FMP). The FMP specifies the
optimum yield (OY) for the scallop fishery in Federal waters off Alaska
as a numerical range of 0-1.1 million lbs (0-499 mt) of shucked scallop
meats. The only management measure authorized under the FMP is an
interim closure of Federal waters off Alaska to fishing for scallops.
Federal waters will remain closed for up to 1 year. This action is
necessary to prevent overfishing of scallop stocks while an amendment
to the FMP is prepared that would allow the controlled harvest of
scallops in Federal waters. This action is intended to prevent
overfishing of scallops that could otherwise result from unregulated
fishing for scallops in Federal waters.
EFFECTIVE DATE: 12:01 a.m., Alaska local time (A.l.t.), August 29,
1995.
ADDRESSES: Copies of the FMP and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for the FMP may be obtained from the North Pacific
Fishery Management Council, P.O. Box 103136, Anchorage, AK 99510.
FOR FURTHER INFORMATION CONTACT: Susan Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION: Federal waters off Alaska have been closed
to fishing for scallops under an emergency interim rule that expires
August 28, 1995 (60 FR 11054, March 1, 1995, corrected at 60 FR 12825,
March 8, 1995, and 60 FR 28359, May 31, 1995). The emergency interim
closure was intended to prevent unregulated and uncontrolled fishing
for scallops in Federal waters while the North Pacific Fishery
Management Council (Council) prepared the FMP.
At its April 1995 meeting, the Council approved the FMP for review
under section 304(b) of the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq. (Magnuson Act)). A notice of
availability of the proposed FMP was published in the Federal Register
on April 28, 1995 (60 FR 20959), and invited comment on the FMP through
June 26, 1995. A proposed rule to implement the FMP was published in
the Federal Register on May 10, 1995 (60 FR 24822), and comments on the
proposed rule were invited through June 19, 1995. Three letters
providing written comment were received within the comment period.
Written comments on the FMP and the proposed rule to implement it are
summarized in the Response to Comments section, below.
The FMP was approved on July 26, 1995, under section 304(b) of the
Magnuson Act. Upon reviewing the reasons for the FMP and the comments
on the proposed rule to implement it, NMFS has determined that this
final rule is consistent with the Magnuson Act and the FMP as adopted
by the Council.
The final rule implements a maximum 1-year closure of Federal
waters to fishing for scallops. The intent of this action is to prevent
an unregulated and uncontrolled fishery for scallops in Federal waters
that could result in overfishing of scallop stocks while an amendment
to the FMP is prepared, which would authorize fishing for scallops
under a Federal management regime. NMFS has pursued this approach,
because it has determined that the suite of alternative management
measures necessary to support a controlled fishery for scallops in
Federal waters could not be prepared, reviewed, and implemented before
the emergency rule expires on August 28, 1995. Instead, NMFS has
approved this rule to protect the long-term productivity of scallop
stocks off Alaska necessary to achieve the future harvest of OY on a
continuing basis without the ``boom and bust'' cycle historically
experienced in other scallop fisheries.
The FMP and its implementing rule are explained further in the
preamble to the proposed rule. The measures set out in the final rule
do not differ from the proposed rule.
Response to Comments
Three letters of comments were received within the comment period.
A summary of the written comments and NMFS' response follows:
Comment 1. No information exists to support closure of Federal
waters to fishing for scallops under the proposed FMP.
[[Page 42071]]
Response. NMFS disagrees. Fishing for scallops in Federal waters by
a vessel not subject to State regulations governing the scallop fishery
precipitated an emergency rule to close Federal waters to unregulated
fishing for scallops (60 FR 11054, March 1, 1995, and 60 FR 28359, May
31, 1995). Based on the events that warranted the emergency interim
rule, the Council has recommended that a Federal FMP is needed to
authorize an interim closure of Federal waters to fishing for scallops
that will continue for 1 year or until a superseding Federal management
regime is implemented, whichever is earlier. In the absence of a
management regime, NMFS anticipates that continued unregulated scallop
fishing could result in local depletion of scallops, increasing the
risk of overfishing of scallops stocks.
NMFS recognizes that an interim closure of Federal waters to
fishing for scallops will result in a substantial impact on scallop
fishermen. The potential foregone revenue to scallop fishermen could
approach $6 million if Federal waters remain closed for the entire
year. However, this short-term impact is justified by the need to
prevent overfishing of scallop stocks and ensure the long-term
productivity of the scallop resource so that the OY may be achieved on
a continuing basis under a future management regime that authorizes a
regulated fishery in Federal waters.
Comment 2. The proposed FMP is not consistent with National
Standard 1, because the FMP does not establish a quantified maximum
sustainable yield (MSY); the proposed OY range does not reflect the
estimated range of harvests in Federal waters relative to distribution
of weathervane scallops, which is from California to Alaska; and the
specified OY is not based on the best information available (see
Comment 3). Furthermore, the 1-year closure authorized under the
proposed FMP would interfere with the achievement of OY on a long-term,
continuing basis.
Response. NMFS disagrees. See also response to Comment 3. NMFS
noted in the preamble to the proposed rule that biomass estimates for
scallops are limited, and the continuing expansion of this fishery into
new areas make numerical estimation of MSY for weathervane and other
scallop species not possible at this time. Nonetheless, an OY range (0
to 1,100,000 lb (0-499 mt)) may be established based on historical
catches from Federal waters. These catches are the best information
available on the long-term productivity of the scallop resource off
Alaska. During the period that Federal waters are closed to fishing for
scallops, the OY is set at zero. This interim OY level is consistent
with National Standard 1 and will achieve OY on a continuing basis
because: (1) Prevention of overfishing during the short-term will help
guarantee a healthy long-term OY from the fishery when it is reopened,
(2) the scallop harvest foregone during the interim closure will be
available for later harvest and will contribute to increased OY because
this species is a long-lived resource, (3) uncontrolled scallop fishing
(the alternative to implementing the FMP) in the EEZ may repeat the
overfishing and stock depression that historically has occurred in the
weathervane scallop fishery, and (4) uncontrolled scallop dredging
increases the potential for increasing bycatch of crab beyond levels
presently established by the State of Alaska and may interfere with
achieving OY in certain crab fisheries.
If implementation of the FMP and its associated OY are delayed
until more scientific information is collected and analyzed,
unregulated fishing for scallops in Federal waters would continue until
NMFS acquired all data necessary to refine the determination of MSY/OY.
At that point, the resource might be too diminished to allow
achievement of OY on a continuing basis.
Comment 3. The proposed FMP is not consistent with National
Standard 2, because the FMP does not use the best information
available, that includes data on landings, meat counts, resource
distribution, spatial catch, and fishing effort. Furthermore, the
available scientific database for the Alaska scallop fishery is thin
and does not justify an interim closure of Federal waters.
Response. NMFS disagrees. The FMP and preamble to the proposed rule
summarized the recent trends in scallop landings, meat counts per
pound, and fishing effort that precipitated the preparation of a
scallop management plan by the Alaska Department of Fish and Game
(ADF&G). NMFS and ADF&G have acknowledged the limited information on
scallop population structure and abundance. ADF&G is continuing to
pursue analyses of biological, fishery, and resource assessment data to
better understand the population structure of the Alaska scallop
resource and its sustainable exploitation level. Available scientific
data on the life history traits of weathervane scallops and other
scallops species indicate that weathervane scallops are susceptible to
localized depletion and require a cautious resource management
approach. Therefore, NMFS has determined that an interim closure of the
scallop fishery in the EEZ is necessary until such time as a management
regime can be implemented to manage the fishery.
Comment 4. The weathervane scallop is distributed from California
to Alaska and commercial fisheries occur off the States of Oregon and
Washington. National Standards 3 and 6 require that an individual stock
of fish shall be managed as a unit throughout its range and management
measures shall take into account and allow for variations among, and
contingencies in, fisheries, fishery resources, and catches. The
proposed FMP does not indicate that any effort was made to consult with
the States of Oregon and Washington or with the Pacific Fishery
Management Council (Pacific Council). Given that the proposed FMP only
addresses fishing activity off Alaska, the FMP does not consider a
properly defined management unit and violates National Standards 3 and
6.
Response. NMFS disagrees. Comment 4 confuses geographic
distribution of a species with stock management. Concentrations of
adult scallops do not mingle and typically are managed as separate
stocks. The geographic range of the weathervane scallops consists of a
collection of stocks. Available information on resource distribution
supports the management of the Alaska scallop resource as separate
stock units. NMFS anticipates that future amendments to the FMP that
authorize controlled fishing for scallops off Alaska will further
define management units of the Alaska scallop resource in a manner very
similar to the scallop management areas developed by the State of
Alaska.
The FMP for the Alaska scallop fishery was precipitated by
uncontrolled fishing for scallops off Alaska. A similar situation could
occur off the Pacific Coast States. This situation has prompted the
Pacific States Marine Fisheries Commission (PSMFC) to pursue an
amendment to the Magnuson Act that would authorize the West Coast
States to protect legitimate state interests in the conservation and
management of fish caught in Federal waters off the coast of
Washington, Oregon, or California in the absence of an approved Federal
fishery management plan.
The PSMFC predicated its action on the belief that scallops are
very sensitive to fishing pressure and that sudden increases in fishing
effort may have long-term negative consequences to the recuperative
capability of scallop stocks. The PSMFC has further acknowledged action
by the Council to initiate rulemaking to control the scallop fishery
off Alaska and the resulting potential for
[[Page 42072]]
increased effort for scallops off Washington and Oregon.
No information is available to NMFS that indicates that the interim
closure of Federal waters off Alaska to fishing for scallops under
either the February 24, 1995, emergency rule or the FMP will have an
impact on the Washington and Oregon scallop fishery in a manner not
already occurring due to increased fishing effort by vessels displaced
from the East Coast of the United States. In recent years, the amount
of scallops harvested off Oregon and Washington annually was not
substantial relative to the Alaska fishery and averaged less than 1
percent of the Alaska harvest during 1989-1992. In 1993, the scallop
landings off Oregon and Washington increased to 270,000 lb (122.47 mt)
and 246,000 lb (111.58 mt), respectively, due to increased fishing
effort by east coast vessels.
The Council has no authority beyond the Federal waters off Alaska.
Nonetheless, the Council consists of three members from the State of
Washington and two members from the State of Oregon. At least one of
these members serves on both the North Pacific and Pacific Councils, as
well as the PSMFC. NMFS believes this joint membership served to inform
adequately the Pacific Council about scallop management actions the
Council was considering. The fact that the PSMFC chose to pursue a
Magnuson Act amendment to resolve Pacific coast management concerns
rather than an interjurisdictional management plan and that the Alaska
scallop FMP only addresses fishing off Alaska does not constitute a
violation of National Standards 3 or 6.
Comment 5. The proposed FMP is not consistent with National
Standard 4. An interim closure of Federal waters to fishing for
scallops discriminates against residents of different States, and only
Alaska State registered vessels are allowed to harvest weathervane
scallops in Alaska State waters. This provides a competitive advantage
to Alaskan vessels.
Response. NMFS disagrees. The interim closure to fishing for
scallops authorized under the FMP does not discriminate against non-
Alaska State residents. All vessels are prohibited from fishing for
scallops in Federal waters off Alaska, including vessels owned and
operated by Alaska State residents and vessels registered under the
laws of the State of Alaska. The State of Alaska has notified the
public that it will open specified State waters to limited fishing for
scallops. Any vessel owner, regardless of state of residency, may
choose to register his/her vessel with the State of Alaska and abide by
State regulations governing the scallop fishery in State waters.
Neither inconsistency with National Standard 4 nor discrimination
against non-Alaska state residents results from implementation of the
FMP.
Comment 6. The proposed FMP is not consistent with National
Standard 5, because the FMP seriously limits efficiency and no analysis
is provided on how a 1-year closure of Federal waters will enhance
long-term efficiency. Similarly, the previous acceptance by NMFS of an
Alaska State scallop management program also imposed technical and
economic inefficiencies.
Response. NMFS disagrees. Efficiency in terms of resource
management is enhanced by providing for the long-term sustainable
harvest of the scallop resource (see response to Comment 2). NMFS
concurs that short-term economic gain is subordinated to the long-term
health of the scallop resource. This balance is considered and allowed
under National Standards 1 and 5. Furthermore, fishery resources
regulations typically control efficiency to prevent stock depletion.
Without such controls, fishermen might fish until it were unprofitable
to do so, resulting in localized depletion of scallops, which would
increase the risk of overfishing scallop stocks.
Comment 7. The proposed FMP is not consistent with National
Standard 7, because the FMP does not address how NMFS would monitor the
closure of Federal waters to fishing for scallops. Effective
enforcement could be costly. Furthermore, the proposed FMP differs from
the regulations of Washington and Oregon and would not minimize costs
and avoid unnecessary duplication.
Response. NMFS disagrees. NMFS would monitor and enforce closure of
Federal waters to fishing for scallops in the same manner that
groundfish area closures are enforced (i.e., observer data,
surveillance flights by the U.S. Coast Guard (USCG), recordkeeping and
reporting documentation, other available sources of information that
indicate the location of fishing operations). NMFS recognizes that some
scallop stocks straddle Federal and State waters in a manner that may
make the enforcement of the closure of Federal waters off Alaska
difficult. NMFS also recognizes that, in recent years, most of the
scallop harvest has come from Federal waters and that the State of
Alaska intends to follow a conservative approach to opening State
waters to fishing for scallops so that the potential for redistribution
of fishing effort from Federal to State waters does not jeopardize the
resource in State waters. NMFS intends to coordinate management with
the State of Alaska so that the State will consider any enforcement
concerns resulting from the closure of the Federal fishery when
determining whether or not to open State waters to fishing for
scallops.
Comment 8. The proposed FMP is not consistent with the New England
Fishery Management Council's (New England Council's) scallop fishery
management plan, which provides for an industry advisory panel. The
proposed FMP should allow for an industry advisory panel to provide a
forum for management agencies and industry members to discuss
management and data collection strategy.
Response. The management measures contained in the scallop fishery
management plan prepared by the New England Council may or may not be
pertinent to the management of the Alaska scallop fishery under the
authority of the Council. The proposed FMP contains a single management
measure, an interim closure of Federal waters, to provide the time
necessary to prepare a management regime that would authorize a
controlled fishery for scallops in Federal waters. This future
management regime could provide for an industry advisory panel that
provides input to management agencies if the Council so desires. An
industry advisory panel beyond that which already exists in the normal
Council process is not mandated, because the New England Council has
made such a provision in its scallop management plan.
Comment 9. Concerns about localized overfishing of scallop stocks
do not justify closure of Federal waters because fishermen will leave a
fishing area before the stock is overharvested to the point where
profit margin falls to the break even point. As a result, sufficient
amounts of scallops will remain to repopulate an area.
Response. NMFS disagrees. Also see response to Comment 2. The
weathervane scallop is a long-lived, slow growing species. As a result,
this species is vulnerable to overfishing. Fishing a localized stock of
scallops until catch-per-unit-of-effort (CPUE) drops to the point of
becoming unprofitable poses conservation concerns, especially if the
stock is reduced to the point where it is not able to recover or can
recover only after a long period of time.
Prior to the 1990's, management of the Alaska weathervane scallop
fishery was premised on the assumption that the fishery would self-
regulate by
[[Page 42073]]
economics. The fishery was fairly small and passively managed using
gear restrictions, fishing seasons, and closed areas. Experience with
this management approach for weathervane scallops and other scallop
species has indicated that a collapse of a scallop fishery is not
uncommon following a relatively brief period of intense fishing effort.
Recent expansion of fishing capacity of the Alaska scallop fleet has
aggravated overfishing concerns.
The scallop resource off Alaska may have avoided overall depletion
during the early years of the fishery (late 1960's and early 1970's)
because scallops were widely distributed and the small fleet was
economically motivated to move to new areas to maintain catch rates or
to other fisheries. However, available fishery data suggest that the
Kodiak and Yakutat area stocks may have been overfished.
During the early years of the Alaska scallop fishery, the scallop
harvests from the Kodiak and Yakutat areas were predominated by
scallops age 7 and older. By the early 1970's, 2-6 year old scallops
dominated the catch. The magnitude of the age shift during the early
years of the fishery, as well as subsequent poor fishery performance,
indicates that high harvests during the early years of the fishery off
Kodiak and Yakutat were not sustainable over the long term (Shirley and
Kruse 1995). Published scientific literature provides numerous other
examples where overharvesting of scallop stocks has led to long-term or
permanent inability to support a commercial fishery (Young and Martin
1989, Orensanz 1986, Aschan 1991).
Comment 10. Closure of Federal waters to fishing for scallops will
prevent the collection of fishery data that are needed for sound
management of the fishery.
Response. NMFS recognizes the importance of fishery data in
monitoring the status of the scallop resource. The FMP authorizes a 1-
year closure of Federal waters, so the potential loss of commercial
fishery data from Federal waters is limited. Fishery data still would
be collected from State scallop fisheries authorized by ADF&G.
Furthermore, ADF&G has scheduled a 1995 resource assessment for the
scallop resource near Kayak Island in the Prince William Sound
management area. In addition, ADF&G plans to analyze biological and
fishery data already collected to assess sustainability of exploited
weathervane scallop stocks off Alaska. Given the opportunity to collect
data from State fisheries during the period of time Federal waters are
closed, as well as ADF&G's analysis of data already collected to
estimate recruitment, growth, and mortality parameters, NMFS does not
believe that a 1-year hiatus in the collection of Federal fishery data
will significantly affect the future management of the fishery.
Comment 11. NMFS accepts public comment and outside data
perfunctorily and for no other reason than that it is required by
statute to do so. No evidence exists, especially for the scallop
fishery, that the comments submitted from commercial fishing interests
have had any effect whatsoever on ultimate decisions.
Response. NMFS disagrees. NMFS routinely revises final regulations
in response to public comment. In the case of the proposed FMP, this
public comment challenging the merits of a fishery closure or the
efficacy of constraining fishing activity implies that short-term
financial gain on the part of one or more vessels has priority over the
long-term health of the scallop resource and sustainable yield by all
participants in the fishery in future years. This perspective is
counter to what NMFS believes to be wise use of the Alaska scallop
resource. Nonetheless, NMFS has acknowledged and responded to such
comments.
Comment 12. The implementation of the proposed FMP is being done on
a fast track to prevent unregulated fishing in Federal waters by one
vessel. A major concern posed by NMFS and the Council is that allowing
unregulated fishing by one vessel in Federal waters could cause serious
biological overfishing. Without any information on resource conditions
and vessel performance measures, it is not possible to state whether or
not a single vessel could endanger the resource locally or otherwise.
This would be highly unlikely.
Response. NMFS disagrees. The schedule for review and
implementation of the proposed FMP is established under section 304 of
the Magnuson Act. NMFS has not deviated from this process to pursue an
alternative ``fast-track'' implementation schedule. NMFS acknowledges
that the preparation and review of the FMP have been given high
priority. NMFS believes that the Alaska scallop fishery must be
protected from uncontrolled fishing activity to better assure the long-
term health of the scallop resource and sustain harvests of this
resource at an optimum level. As experienced earlier in 1995,
unregulated fishing by a single vessel in Federal waters exceeded an
Alaska State guideline harvest level by over 100 percent. This degree
of overharvesting has the potential for unrestricted crab bycatch and
the possibility that one or more vessels would continue to overharvest
the scallop stocks, necessitates closure of Federal waters until a
Federal management regime is prepared that authorizes a controlled
fishery for scallops. Moreover, continued unregulated fishing by one or
more vessels could result in conflicts with other vessels that do not
choose to pursue an unregulated fishery, or those Alaska-licensed
vessels that are prohibited from fishing for scallops. NMFS has
determined that such conflicts represent serious management issues that
should be addressed whenever possible.
Comment 13. NMFS was content to permit regulation of the scallop
resource by the State of Alaska, which authorized the harvest of 1.6
million lbs (726 mt) of scallops for 1995. Furthermore, NMFS did not
require the Alaska State regulations covering harvesting in Federal
waters by Alaska State registered vessels to meet the national
standards and purposes of the Magnuson Act. The 1995 quota under State
management, which NMFS found acceptable, still has 1.5 million lbs (680
mt) available. Yet NMFS maintains that the fishery must be closed to
protect the resource. The full 1995 Alaska quota should be harvested
before the fishery is closed.
Response. NMFS disagrees. Comment 13 suggests that no conservation
problem exists that justifies a closure of Federal waters under the
proposed FMP, because the full 1.6 million lbs (726 mt) annual quota
established by the State of Alaska has not been harvested. This premise
is misleading and irrelevant to the basis for the interim closure
authorized under the FMP. The interim closure under the FMP is
necessary to address NMFS' concern for localized depletion as a result
of uncontrolled dredging for scallops by one or more vessels.
Experience in 1995 has shown that closure of an area to fishing for
scallops under Alaska State regulations when an annual quota has been
reached does not cause unregulated vessels to cease fishing operations.
As a result of such action, the State's quota for its Prince William
Sound registration area was exceeded by over 100 percent. This poses
more than adequate evidence of a serious conservation problem.
Therefore, the commenter's suggestion that scallops remain to be
harvested in other Federal waters off Alaska is irrelevant to the
problem faced by management agencies.
Comment 14. The determination in the preamble to the proposed rule
that the rule is not significant for purposes
[[Page 42074]]
of E.O. 12866 is unexplained and is not legally correct.
Response. The EA/RIR/Initial Regulatory Flexibility Analysis
prepared for the FMP addressed the significance of the interim closure
authorized under the FMP relative to E.O. 12866. This information was
not required to be repeated in the preamble to the proposed rule.
NMFS requires the preparation of a RIR for all regulatory actions
that either implement a new fishery management plan or significantly
amend an existing plan. The RIR is part of the process of preparing and
reviewing fishery management plans and provides a comprehensive review
of the changes in net economic benefits to society associated with
proposed regulatory actions. The analysis also provides a review of the
problems and policy objectives promoting the regulatory action and an
evaluation of the major alternatives that could be used to solve the
problems. The RIR addresses many of the items in the regulatory
philosophy and principles of E.O. 12866.
E.O. 12866 requires that the Office of Management and Budget review
proposed regulatory programs that are considered to be ``significant.''
A ``significant regulatory action'' is one that is likely to:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
A regulatory program is ``economically significant'' if it is
likely to result in the effects described in item (1) above. The RIR is
designed to provide information to determine whether the proposed
regulation is likely to be ``economically significant.''
NMFS believes the RIR prepared for the proposed FMP adequately
assessed the costs and benefits that could result from the
implementation of the proposed FMP and that the determination that the
rule implementing the FMP is not significant under E.O. 12866 is
justified.
Comment 15. The legal brief supporting Trawler Diane Marie, Inc.'s
motion for summary judgment in its case seeking to set aside the
February 24, 1995, emergency rule, as well as the associated affidavit
of James E. Kirkley and William D. DuPaul commenting on both the
emergency rule and the proposed FMP closure of the scallop fishery in
Federal waters off Alaska are submitted as comment on the proposed FMP.
Response. The issues and complaints contained in the legal brief
filed by the plaintiffs in Trawler Diane Marie, Inc. v. Ronald H.
Brown, No. 2-95-CV-15-D(2) (E.D.N.C.), have been responded to in
several subsequent memoranda of reply and are not repeated here.
General comments that directly pertain to the proposed FMP and that
were contained also in the Kirkley and DuPaul review of the proposed
FMP are addressed above. Comments specific to the Kirkley and DuPaul
review are addressed below.
Comment 16. The proposed FMP presents insufficient information to
assess whether or not the FMP will improve resource conditions and
benefit the nation. There has been no stock assessment of the resource
in recent years. Furthermore, the structure of the stock is not defined
and information is lacking on whether the resource is characterized as
an open population or defined in terms of discrete, localized, and
self-contained populations.
Response. NMFS acknowledges that the data on the weathervane
scallop resource are not complete. ADF&G conducted an assessment of the
Cook Inlet stock in 1984 and intends to conduct an assessment of the
Prince William Sound stock this summer. Although stock structure of the
weathervane scallop resource is not well defined, scientists generally
recognize the resource to comprise megapopulations, which are discrete
collections of adult animals that do not intermix but that may be
connected by larval drift. Such populations are susceptible to
localized depletion. Furthermore, the proposed FMP refers to scientific
evidence that a number of other scallop species have megapopulations
comprising multiple discrete self-sustaining populations. NMFS
concludes from these studies that weathervane scallops structure may be
organized similarly and be susceptible to localized overfishing.
Weathervane scallops and other scallop species have a history of
overexploitation that resulted in serious depletion of localized
stocks, which may have led to overfishing (Shirley and Kruse 1995).
Concerns about overexploitation as well as uncertainty about scallop
stock structure and abundance support a conservative interpretation of
available data and development of a management regime in favor of
resource protection. This approach is superior to that alluded to in
Comment 16, which indicates that, in the absence of definitive
information about the scallop resource, NMFS should err on the side of
resource exploitation.
Comment 17. No apparent information exists on catch and effort or
meat counts, although the proposed FMP refers to voluntary data
submitted by members of the scallop fishery and to other anecdotal
information. NMFS indicates that this information suggests a resource
problem, because the number of meats per pound has increased and CPUE
has declined in recent years. Contrary to NMFS' premise, increased meat
counts could be the result of many factors, one of which is the fact
that scallop vessels have increasingly exploited Federal waters off
Alaska. The water depth is typically deeper in offshore waters and
scallops from deep waters typically have lower yields or higher counts
than scallops of the same size for shallow water areas because of
reduced food abundance. Also, since the fishery has intensified, there
has been more exploitation throughout the year. As a consequence, more
scallops may now be harvested during the spawning period when meat
yields typically decline or the counts increase.
Response. ADF&G has collected landings data from fish tickets from
the Alaska scallop fishery since the 1960's. This information includes
catch amounts and limited data on fishing effort (e.g., number of
vessels, vessel size, number of tows). ADF&G also collected data from
on board catch sampling and logbook interview programs from the scallop
fishery during 1968-1972 and provided additional effort information
(actual number of days fished) as well as data on shucked meat weights.
In addition, ADF&G has conducted an on board observer program since
1993 that collects detailed data on catch and effort (e.g., duration of
tows).
Published literature indicates that scallop growth can vary between
inshore and offshore areas (MacDonald and Bourne 1987, Can. J. Fish.
Aquat. Sci. 44: 152-160) and between geographic areas. A movement of
vessels from inshore to offshore fishing grounds would indicate that
catch rate is declining in the area the vessels are leaving. This
suggests inshore scallop stocks have been fished down to the point
where vessels no longer can profitably harvest them. Furthermore, age
composition data from the
[[Page 42075]]
commercial fishery during the late 1960's and early 1970's showed a
downward shift in age structure in the Kodiak and Yakutat stocks (see
response to Comment 9).
Although a year-round fishery and exploitation during the spawning
season could account for higher meat counts, this is not a likely
explanation for increased meat counts in the Alaska scallop fishery,
because most of the Alaska scallop harvest occurs in the summer months,
after the spawning season.
Comment 18. The proposed FMP presents no information on pre-
recruits, which would not be observed in the State's mandatory observer
program and which could be extremely high. Alaska State regulations and
the commercial gear configuration allow escapement of small scallops.
Available data indicate the timing and frequency of spawning by
weathervane scallops is highly synchronous. Consequently, scallop shell
height frequency distributions could be a good indicator of year-class
survival or strength for ages 1 to 4. This important information
apparently is not obtained by at-sea observers.
Response. Vessels that fish under the authority of Alaska State
regulations carry observers. These observers collect data on shell
height frequency that is analyzed by ADF&G to assess stock condition
and exploitation. Further, commercial fishery data on the abundance of
age 3 or 4 scallops may provide an index of future productivity.
Although weathervane scallops can produce gametes by age 3 or 4,
these ages may not contribute significantly to reproduction. Data on
some related species show that adults do not produce fully viable
gametes until several years after age at first maturity. Scientists in
British Columbia currently are researching this phenomenon for
weathervane scallops. Thus, published information on age-at-maturity
may be changing. If mean age of maturity is older than previously
thought, current regulations afford less protection for spawning stocks
than currently believed and recruitment overfishing is more likely to
occur.
Comment 19. Management agencies have not collected information on
fishing effort in the Alaska scallop fishery regularly. However, the
consensus of scallop researchers is that CPUE is not a valid indicator
of the resource abundance of scallops.
Response. Information on CPUE in the Alaska scallop fishery has
been regularly collected on ADF&G fish tickets since the 1960's. NMFS
generally agrees that average CPUE may not be a valid indicator of
resource abundance for aggregative species like scallops, because
concentrations are fished heavily until CPUE drops, and the fleet or a
vessel then moves on to a different stock to repeat this pattern.
Rather than analyze region-wide CPUE data, the State of Alaska is
analyzing detailed area-specific fishery data with geographic
information systems to better understand stock distribution and
abundance. Further, ADF&G is analyzing biological data collected from
the State's observer program to estimate recruitment, growth, and
mortality parameters and to increase management agency knowledge of the
sustainability of the exploited Alaska weathervane scallop stocks.
Comment 20. The management of the Alaska scallop fishery by ADF&G
has contributed to a decline in CPUE. Quotas established by ADF&G are
notoriously inefficient and cause vessels to engage in derby-style
fishing practices. This type of fishing strategy has been shown
throughout the fishery literature to cause a decline in CPUE and to
create economic and technical inefficiency. This approach to fishery
management violates National Standard 5, because it fails to promote
efficiency in the utilization of fishery resources.
Response. NMFS finds that this comment is not relevant to the
action being proposed (i.e., a 1-year closure of the scallop fishery in
the EEZ). Nonetheless, NMFS notes that establishment by the State of
Alaska of management area quotas is an accepted management measure used
by fishery management agencies.
Comment 21. The proposed FMP reports an unreasonably high harvest
capacity (65,000 lbs, or 29 mt, of shucked scallop meats per week) for
the single vessel that had fished Federal waters outside the regulatory
authority of the State of Alaska and which precipitated the February 24
emergency closure of Federal waters as well as the proposed FMP.
Response. NMFS disagrees. The draft FMP does not state that the
vessel that precipitated the closure of Federal waters had a 65,000 lb
(29 mt) harvest capacity. Rather, the FMP reported that when the
U.S.Coast Guard personnel boarded the vessel, they were informed by the
vessel's crew that the vessel had about 54,000 lbs (24 mt) of shucked
scallop meats on board. The point stressed in the proposed FMP and the
preamble to the proposed rule to implement the FMP was that this level
of catch on board the vessel exceeded the quota for the management area
the vessel was operating in by over 100 percent.
Comment 22. The proposed FMP states that it is necessary to close
the scallop fishery in Federal waters, because insufficient information
is available to regulate the fishery. Yet, scientific literature
(Hillborn and Walters, 1992) has shown that little information
necessary for resource management can be obtained when the fishery is
managed or regulated by extremely conservative strategies (e.g., an
area closure). With this in mind, it may not be possible for NMFS to
ever reopen Federal waters, if the opening depends upon a plan based on
sound scientific information. The interim closure proposed under the
FMP limits the collection of information necessary for sound resource
management.
Response. NMFS disagrees. Also see response to Comment 10. The FMP
does not authorize closure of Federal waters to fishing for scallops
because insufficient information is available to regulate the fishery.
Rather, the FMP implements an interim closure of Federal waters to
prevent overfishing while a Federal management regime is prepared to
authorize a controlled fishery for scallops. Until unregulated fishing
activity of a single vessel precipitated closure of Federal waters, the
scallop fishery was managed with the best information available and it
will continue to be managed with the best information available once
Federal waters reopen to fishing under a future amendment to the FMP.
The cited reference (Hillborn and Walters, 1992) reports that key
resource assessment calculations heavily depend on data that can be
gathered early in a fishery's development and that a data gathering
program should be developed to collect information from subsequent
phases of the fishery. If a fishery is left unregulated, species that
form large aggregations are easy targets for exploitation and are
susceptible to depletion and collapse. This pattern of exploitation and
collapse has occurred repeatedly for a number of scallop stocks.
NMFS notes that although the importance of fishery data is clear,
the single vessel fishing in the unregulated fishery for scallops in
early 1995 carried no observer and did not report its catch to
management agencies. As a result, catch information and other fishery
data from this vessel are not included in the information base being
developed to manage the Alaska scallop fishery. Although the interim
closure of Federal waters temporarily limits the collection of fishery
data, not implementing the FMP and allowing unregulated vessels to fish
for scallops in Federal waters would not guarantee that fishery data
[[Page 42076]]
would be provided to management agencies.
Comment 23. Given the inadequacy of biological, social, and
economic information to ascertain the status of the scallop stocks or
the condition of the fishery, the available data do not support closure
of Federal waters to fishing for scallops. If the FMP is implemented,
NMFS will have to underwrite a large and expensive research program. If
the research program has not yet begun, it will be a long time before a
good FMP can be developed for the fishery.
Response. For the reasons described above, NMFS acknowledges that
limited information on the Alaska scallop resource justifies a
conservative approach to the management of this resource. This approach
is based on the premise that uncertainty should lead to greater
caution, not recklessness in the hope of short-term economic gain.
ADF&G has conducted resource assessments in Cook Inlet and intends
to pursue a survey of part of the Prince William Sound stock this
summer. An assessment of stock condition does not necessarily require
expensive and long-term research. For example, observer data on catch,
effort, and age composition could be analyzed to assess a stock's
sustainability to exploitation. ADF&G plans to use these observer data
in a geographic information systems analysis to provide a fishery-based
assessment of stock status and productivity. NMFS is considering
possible cooperative arrangements with the State of Alaska to make use
of the information made available from ADF&G's assessment program.
Comment 24. The proposed FMP specifies an OY of 1.1 million lbs
(499 mt), which equals the highest estimated harvest from Federal
waters off Alaska. NMFS inappropriately based the proposed OY on
historical landings because the landings have been sporadic, not
indicative of a fully exploited resource, and regulated by quotas. In
fact, historical landings reflect opportunities in other fisheries as
well as those in the weathervane scallop fishery. Bourne (1991) argues
that the resource tends to be exploited when opportunities in other
fisheries are diminished. As a result, the landings series do not
coincide with periods of full exploitation and the resulting guideline
harvest ranges implemented by the State of Alaska and the proposed OY
is likely to be artificially low.
Response. NMFS agrees that historical landings could have been
affected as opportunities in other fisheries flourished or diminished.
However, available data also support the premise of management agencies
that fluctuating landings in the Alaska scallop fishery are reflective
of the reduced availability of scallops resulting from the pulse nature
of the fishery and the ``boom and bust'' cycles of resource abundance.
Furthermore, the State of Alaska only recently (1993) implemented
quotas for the Alaska scallop fishery. Prior to this time, scallop
harvests were regulated only with gear restrictions, area closures, and
fishing seasons. Last, analyses upon which ADF&G's guideline harvest
ranges are based do not include very high or very low annual harvests
to dampen the effect of annual variation on the calculation of
sustainable yield estimates.
Comment 25. Using information contained in the draft FMP and a
simple analysis of landings and number of trips using a surplus
production model of the form of Schaefer (1957) indicates that the MSY
for weathervane scallops off Alaska is approximately 6.3 million lbs
(2,857 mt) of meats. The model is statistically significant, although
the coefficient for the effort squared, measured by number of landings,
is not statistically significant. This estimate is based on the best
scientific information available--landings and number of trips over
time. If the number of vessels is used instead of number of landings,
the MSY is estimated to equal 1.3 million lbs (590 mt) of meats.
Response. The Schaefer model for estimating surplus production and
MSY has been considered invalid since the 1960's (Larkin 1977).
Furthermore, neither the number of landings nor the number of vessels
are adequate variables to use because scallop vessel size and capacity
has changed greatly over the past 20 years. Similarly, vessels have
gone from a part-time engagement in the Alaska scallop fishery to full-
time participation. Thus the vessels used to participate in the scallop
fishery in the late 1960's and 1970's cannot be compared to the 15-17
vessels currently participating in the fishery because their levels of
participation are not comparable. Even if the Schaefer model were
appropriate, NMFS would seriously question the commenter's preferred
alternative of using the highest MSY estimate of 6.3 million lbs (2,857
mt), instead of a more conservative amount, given the wide range (1.3
million-6.3 million lbs (590 mt-2,857 mt) calculated from the
commenter's efforts, and the uncertainty of the data used by the
commenter.
Comment 26. The proposed FMP states that a major reason for the
interim closure and a Federal FMP is to prevent the ``boom and bust''
syndrome historically exhibited by other scallop fisheries. There is
absolutely no evidence that a ``boom and bust'' fishery is bad. In
fact, many U.S. fisheries, particularly shellfish fisheries, exhibit
cyclic patterns in resource abundance and fishing activity. A good
example of this is the Calico scallop (Argopecten gibbus) fishery in
the State of Florida. Moreover, pulse-fishing is a strategy often
adopted by fishermen to maximize net returns over time. In general,
management strategies have not been able to prevent ``boom and bust''
episodes in fisheries that are naturally cyclic.
Response. The Calico scallop fishery is a poor example for
justifying a ``boom and bust'' fishery for weathervane scallops off
Alaska. Contrary to the long-lived weathervane scallop, the Calico
scallop has a short life span (less than 2 years). Species of short
life span typically are less vulnerable to overfishing, unlike
weathervane scallops, which have a long life span and are more
susceptible to recruitment overfishing. Published literature cites many
examples where a relatively brief intense period of fishery
exploitation has resulted in stock collapse (see response to Comment
9).
Under the proposed FMP, as well as the State of Alaska management
program, harvest constraints will have some effect in dampening the
natural fluctuations in resource abundance. A constant supply of
scallops would also dampen economic impacts on the weathervane scallop
industry relative to the cyclic abundance pattern that can wreak havoc
on established markets.
Comment 27. Under the proposed FMP, there will be unprecedented
scallop fishing effort by vessels in State waters because Federal
waters will be closed. Evidence exists that the State will allow
increased harvest levels in State waters in response to the closure.
Therefore, the likelihood exists that fishing activity in State waters
will be unprecedented unless controlled by strict harvest quotas. Thus,
the same argument used to close Federal waters will have to be used to
close State waters to the harvesting of weathervane scallop fishing.
The only way to guarantee that the risk of recruitment failure or
growth overfishing will be minimal is to close the entire weathervane
scallop fishery.
Response. Under the proposed FMP, as well as the State of Alaska
management program, harvest constraints will help dampen the natural
fluctuations in resource abundance, will better prevent recruitment
overfishing, and will promote sustainable and predictable fishery-
related employment on a
[[Page 42077]]
continuing basis. A constant supply of scallops would also dampen the
adverse economic impacts on markets that could be caused by erratic or
cyclic patterns of scallop abundance.
The State of Alaska opened only limited areas in State waters to
fishing for scallops under quotas that will protect scallop stocks
within State waters from any increase in fishing effort that may occur
because of the closure of Federal waters. For the 1995 fishing season,
only the State waters of the Dutch Harbor and Adak areas opened to
scallop fishing as scheduled on July 1. Available fishing grounds are
extremely limited and harvest amounts are not expected to be
significant. The harvests in these areas from the 1993 and 1994 seasons
were only 40,000 lbs (18 mt) and 2,000 lbs (0.9 mt), respectively.
Furthermore, scallop harvests and crab bycatch rates will be assessed
in-season to guide management decisions and inseason closures.
Comment 28. The proposed FMP states that weathervane scallops
possess biological traits (e.g., longevity, low natural mortality
rates, and variable recruitment) that render them vulnerable to
overfishing. It is not clear why these traits would render scallops
vulnerable to overfishing. In fact, the trait of variable recruitment
is a trait that can result in resource restoration.
Response. Resource restoration is a factor of numerous variables,
including recruitment and natural mortality (M). A number of biological
reference points is widely accepted for the management of fishery
resources. One of these points is fishing mortality (F) at a level that
equals natural mortality (M). If a stock exhibits low M, then chances
increase that an unknown F is actually greater than M. Lacking more
definitive information, another basic premise of traditional fishery
management is that species of large size, longevity, and low natural
mortality tend to be vulnerable to overharvest (Adams 1980; Leaman
1991). Moreover, published literature (Murphy 1967) shows that species
that reproduce at multiple ages with variable reproductive success are
very vulnerable to overharvest when fishing alters the age structure
such that the population approaches a single reproduction. In the case
of scallops, fishing-induced shifts in age structure to ages 2-6, as
occurred in the early 1970s, reduce the stock's ability to maintain
itself under periods of poor recruitment.
Comment 29. Management alternatives exist to a closure of Federal
waters to fishing for scallops. For example, NMFS could impose a quota
of 1.1 million lbs (499 mt) in Federal waters and require an observer
aboard every vessel. When the quota will be reached, NMFS could close
the fishery. Concerns about a derby-style fishery could be addressed
through daily or weekly quotas or vessel specific quotas or
allocations.
Response. NMFS disagrees with the commenter's approach. NMFS does
not at this time have information to justify how the harvest of a
particular quota (e.g., 1.1 million lbs) should be spread among
potential management areas to prevent localized depletion of scallops.
If a single harvest amount were specified and allowed to be fished
without this information, scallop stocks could be adversely impacted.
Requiring an observer on board every vessel would not ameliorate this
situation. The Council is in the process of preparing an amendment to
the FMP that would establish a Federal management regime authorizing a
controlled fishery for scallops in Federal waters as soon as possible.
In addition to quotas and levels of observer coverage, the Council will
likely consider measures such as area closures and prohibited species
bycatch allowances to protect other fish species (e.g. crabs). Also,
the Council will likely consider measures necessary for inseason
management of the scallop fishery (e.g., gear configurations, crew
sizes, recordkeeping and reporting requirements). The Council will
consider carefully each of these measures as to whether it is necessary
for conservation and management of the scallop fishery. Public comments
will be invited, responded to, and if necessary, adjustments to
particular management measures might be developed. Once the Council
recommends its preferred alternative for each particular measure, NMFS
will determine whether it comports with the national standards and
other applicable laws, and decide whether to approve it. This process,
although lengthy, is essential to provide a rational regime that
responds to NMFS's responsibilities under the Magnuson Act to conserve
and manage the scallop fishery off Alaska.
Comment 30. In recent years, the catch capacity and capitalization
in the Alaska scallop fishery has become excessive due to speculative
entry. The result has been severe financial pressure on fishery
participants. The only way to reduce this pressure is to reduce
excessive capacity to a rational level. The management of this fishery
must proceed as soon as possible towards a comprehensive system that
will optimize the fleet at a more rational level.
Response. NMFS agrees. See response to Comment 29.
Literature References
Adams, P.B. 1980. Life history patterns in marine fishes and their
consequences for fisheries management. Fish. Bull. 78: 1-12.
Aschan, M.M. 1991. Effects of Iceland scallop dredging on benthic
communities in the Northeast Atlantic. Special international workshop
on the effects of physical disturbance on the sea floor on benthic and
epibenthic ecosystems. Conseil International pour L'Exploration de la
Mer. Benthos Working Group. Unpublished Manuscript.
Bourne, N. 1991. Fisheries and Aquaculture: West Coast of North
America, p. 925-942. In: SE. Shumway (ed.). Scallops: Biology, Ecology,
and Aquaculture. Elsevier, Amsterdam.
Hillborn, R. and C.J. Walters. 1992. Quantitative fisheries stock
assessment: Choice, dynamics and uncertainty. Chapman and Hall. New
York.
Larkin, P.A. 1977. An epitaph for the concept of maximum
sustainable yield. Trans. Amer. Fish. Soc. 106: 1-11.
Leaman, B.M. 1991. Reproductive styles and life history variables
relative to exploitation and management of Sebastes stocks.
Environmental Biology of Fishes 30:253-271.
MacDonald, B.A., and N.F. Bourne. 1987. Growth, reproductive
output, and energy partitioning in weathervane scallops, Patinopecten
caurinus, from British Columbia. Can. J. Fish. Aquat. Sci. 44: 152-160.
Murphy, G.I. 1967. Vital statistics of the Pacific sardine
(Sardinops caerulea) and the population consequences. Ecology 48:731-
736.
Orensanz, J.M. 1986. Size, environment, and density: the regulation
of a scallop stock and its management implications. Pages 195-227 in
G.S. Jamieson and N. Bourne, editors. North Pacific workshop on stock
assessment and management of invertebrates. Canadian Special
Publication of Fisheries and Aquatic Sciences 92.
Schaefer, M.B. 1957. A study of the dynamics of the fishery for
yellowfin tuna in the eastern tropical Pacific Ocean. Inter-Am. Trop.
Tuna Comm. Bull. 2: 247-268.
Shirley, S.M. and G.H. Kruse. 1995. Development of the fishery for
weathervane scallops, Patinopecten caurinus (Gould, 1850) in Alaska.
Journal of Shellfish Research 14: 71-78.
Young, P.C. and R.B. Martin. 1989. The scallop fisheries of
Australia and their management. Reviews in Aquatic Science 1: 615-638.
[[Page 42078]]
Classification
The Director, Alaska Region, NMFS, determined that the FMP is
necessary for the conservation and management of the Gulf of Alaska and
the Bering Sea and Aleutian Islands management area fisheries and that
it is consistent with the Magnuson Act and other applicable laws.
NMFS prepared an FRFA as part of the RIR. A copy of this analysis
is available from the Council (see ADDRESSES).
To avoid a regulatory hiatus when the February 23, 1995, emergency
rule expires and to address conservation concerns resulting from
uncontrolled fishing for scallops, this rule must be effective on 12:01
a.m., A.l.t., August 29, 1995. In addition, because this rule will
continue the emergency rule's prohibition on fishing for scallops, the
fishing industry will not need any additional time to adjust to the
requirements imposed by this rule. These reasons constitute good cause
under authority contained in 5 U.S.C. 553(d)(3) for waiving all or part
of the 30-day delay in effective date.
This rule has been determined to be not significant for purposes of
E.O. 12866.
List of Subjects in 50 CFR Part 673
Fisheries.
Dated: August 8, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 673 is added
as follows:
1. Part 673 is added to Chapter VI of 50 CFR to read as follows:
PART 673--SCALLOP FISHERY OFF ALASKA
Sec.
673.1 Purpose and scope.
673.2 Definitions.
673.3 Prohibitions.
Authority: 16 U.S.C. 1801 et seq.
Sec. 673.1 Purpose and scope.
(a) These regulations implement Federal authority under the
Magnuson Act to manage the scallop fishery in the exclusive economic
zone off Alaska.
(b) Regulations in this part govern commercial fishing for scallops
in the exclusive economic zone off Alaska.
Sec. 673.2 Definitions.
In addition to the definitions in the Magnuson Act and in 50 CFR
part 620, the terms in 50 CFR part 673 have the following meanings:
Exclusive Economic Zone (EEZ) (see Sec. 620.2 of this chapter)
Scallop(s) means any species of the family Pectinidae, including
without limitation weathervane scallops (Patinopecten caurinus).
Sec. 673.3 Prohibitions.
In addition to the general prohibitions specified in Sec. 620.7 of
this chapter, it is unlawful for any person to retain any scallops in
the EEZ seaward of Alaska during the period that extends through the
earlier of August 28, 1996, or until superseded by other management
measures.
[FR Doc. 95-19971 Filed 8-10-95; 1:12 pm]
BILLING CODE 3510-22-F
