January 28, 1999
Dr. Gary C. Matlock
Director
Office of Sustainable Fisheries
National Marine Fisheries Service
1315 East-West Highway
Silver Spring, Maryland 20910
Re: Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan
Dear Dr. Matlock:
The Office of Advocacy of the U.S. Small Business Administration (SBA) was established by Congress under Pub. L. No. 94-305 to advocate the views of small business before federal agencies and Congress. Advocacy is also required by §612 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) to monitor agency compliance with the RFA. On March 28, 1996, President Clinton signed the Small Business Regulatory Enforcement Fairness Act which made a number of significant changes to the Regulatory Flexibility Act, the most significant being provisions to allow judicial review of agencies' regulatory flexibility analyses.
Scallop Proposal
On December 18, 1998, the National Marine Fisheries Services (NMFS) proposed a rule entitled Fisheries of the Northeastern United States; Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan, Federal Register, Vol. 63, No. 250, p.70093. Although the NMFS performed an Initial Regulatory Flexibility Analysis (IRFA) of the rule, the Office of Advocacy is concerned by the lack of consideration of viable alternatives.
Purpose and Impact of the Rule
The purpose of Amendment 7 of the Fishery Management Plan for the Atlantic Sea Scallop Fishery is to reduce the fishing mortality rate of the Atlantic Sea Scallop by eliminating overfishing and rebuilding the stocks. Amendment 7 makes several changes to the current management plan. In particular, Amendment 7 will:
1) redefine overfishing;
2) revise the existing fishing mortality reduction schedule through fishing year 2008 to reduce the allowable days at sea for Atlantic sea scallop vessels in order to rebuild the scallop stock within 10 years;
3) establish an annual monitoring and review process to adjust management measures to meet the stock rebuilding objectives;
4) continue the Mid-Atlantic closed areas in order to protect high concentrations of juvenile scallops; and
5) allow the following management measures to be implemented and adjusted through framework adjustment: closed areas, changes in overfishing definitions, size restrictions, aquaculture projects, and four days at sea management options, including leasing days at sea.
With regards to days at sea, Amendment 7 would allocate 120 days at sea for 1999. In the year 2000, the allocation will be reduced to 51 days at sea and remain low for the remainder of the 10 year rebuilding period. Revenue will be reduced by 38% in the year 2000.
Industry Suggested Alternative
In June 1998, the Fisheries Survival Fund (FSF) submitted a Petition for Rulemaking to NMFS in this matter. In the petition, FSF asked the Secretary of Commerce to exercise his emergency authority to implement limited rotational reopening of certain portions of the Georges Bank closed areas. FSF asserted that its plan, an alternative to the rebuilding plan provided by NMFS, would rebalance the scallop fishery and maintain an economically viable scallop fishery.
To support its petition, FSF presented a study prepared by the University of Massachusetts-Dartmouth Center for Marine Science and Technology (UofM). The study examined a sampling of scallops in the Georges Bank Area 2, which is located in Massachusetts. The sampling indicated that the Georges Bank closed areas contained a huge concentration of scallops that could sustain the economic viability of the scallop fleet, if fished at a low exploitation rate. The study indicates that scallop stocks can rebound if fished on a rotational basis. FSF also asserted that its sampling effort has indicated that scallops may be dying from overcrowding in some of the closed areas.
NMFSs Obligation to Consider Alternatives under the RFA and Magnunson Standard Number 8
The RFA Requires an Agency to Consider Alternatives
Pursuant to section 603 (c) of the RFA, "each initial regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. ..." In the proposal, NMFS considered three alternatives. The alternatives were a three-year rebuilding plan; a seven-year rebuilding plan; and a ten-year rebuilding plan. The chosen alternative allowed for rebuilding in years 2 through 10 but not year 1. The 7 and 10-year alternatives would have required rebuilding in the first year.
While the Office of Advocacy appreciates the fact that NMFS has chosen an alternative that minimizes the immediate effect on small businesses, Advocacy questions whether NMFS has considered true alternatives to resolve the problem and whether NMFS has fulfilled its obligation under the RFA. On remand, in the case of Southern Offshore Fishing v. Daley, 97-1134-CIV-T-23C, slip op. at 5-7, the United States District Court for the Middle District of Florida, Tampa Division characterized the agencys treatment of alternatives as "superficial" and referred the matter of appropriate alternatives to a special master after NMFS failed to consider alternatives aside from "maintenance the status quo" and "closure of the fishery".
The alternatives for the scallop proposal are not very different from the Southern Offshore Fishing case. Like the Southern Offshore Fishing case, the alternatives in the scallop proposal are simply different degrees of the chosen alternative. A court could possibly find, therefore, that NMFS has not met its obligation to consider meaningful alternatives to solve the problem of the scallop fishery.
Magnunson Standard Number 8
National Standard 8 of the Magnunson-Stevens Act requires the NMFS to consider the importance of the fishing resources to the fishing community and select the alternative that minimizes the adverse economic impact on the community. 50 C.F.R. § 600.345(b) The New Bedford area of Massachusetts is an economically depressed area. Although the unemployment rate for the State of Massachusetts is approximately 2.7 per cent, the most recent statistics indicate that unemployment rate for the New Bedford area is 6.6 per cent. (1)The New Bedford unemployment rate not only exceeds the Massachusetts unemployment rate, it also exceeds the national unemployment rate of 4.3%.(2)
Given that the town of New Bedford has an unemployment rate in excess of both state and federal levels, NMFS should be considering alternatives that will promote economic recovery, not exacerbate economic decline. By choosing an alternative that will reduce the days at sea from 120 days to 51 days, resulting in a 38% reduction of revenue by the year 2000, NMFS has chosen the chosen alternative that will lead to the rapid decline of the community. Such a choice will be detrimental to small fishing businesses and may violate National Standard 8 the Magnunson Act.
Because of the magnitude of the economic decline of the New Bedford area, the Office of Advocacy asserts that NMFS should consider alternatives that not only rebuild the scallop stock, but also assists in the economic recovery of the town and the industry. The alternative suggested by FSF is a possible solution to the problems facing New Bedford, the fishing industry, and NMFS.
If the scientific evidence provided by FSF is correct, than the solution lies in reopening the closed areas of Georges Bank. The area has been closed for over three years, allowing the scallops to spawn to replenish the stock. The area is rich returns with mature scallops. In fact, some of the stock may be dying due to overcrowding. Fishing for even the limited amount of days in a bountiful area rather than in a depleted area may produce a bountiful harvest for the members of the industry, even with a reduced catch rate.
While the Office of Advocacy recognizes that NMFS has discretion in these matters, Advocacy questions the rationality of a decision which limits the days at sea in areas where the stock is low while allowing overstocked areas to remain closed. Accordingly, Advocacy respectfully requests that NMFS explicitly address, for public review, the alternative that the industry has suggested. Failure to fully address an alternative that may provide a "win- win" solution may not only violate the RFA, it also raises questions about the agencys compliance with the Magnunson-Stevens Act.
If you have any questions, please feel to contact Jennifer A. Smith, Assistant Chief Counsel for Economic Regulation at 202-205-6943. Thank you for allowing me to comment on this important proposal.
Sincerely,
Jere W. Glover
Chief Counsel
Office of Advocacy
Jennifer A. Smith
Assistant Chief Counsel
for Economic Regulation &
International Trade
Cc: Jon C. Ratters
ENDNOTES
1. Massachusetts Department of Labor Statistics
2. United States Department of Labor Statistics