Scallop Fishery off Alaska; Closure of Federal Waters to Protect Scallop Stocks

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