__________________________________________

CONSERVATION LAW FOUNDATION, et al. Plaintiffs,

v.Case No. 1:00CV01718

ROBERT L. MALLETT, et al. Defendants
__________________________________________
 

DECLARATION OF MARJORIE J. ORMAN

I, Marjorie J. Orman, declare and state as follows:

1. I make this Declaration based on my personal knowledge and in support of the Fisheries Survival Fund’s Motion to Intervene in the above captioned action.

2. I am an original organizer of, a director of, and the principal officer of the Movant Fisheries Survival Fund (“FSF”).

3. FSF was founded in March of 1998.  Its participants now include well over 120 full-time Atlantic sea scallop permit holders from southern New England down through New Jersey and Virginia. Although FSF began as an organization involving southern New England full-time Atlantic sea scallop vessel owners, the FSF now has become coast-wide in scope.

4. FSF was formed with the following goals in mind: (1) to maintain a viable Atlantic sea scallop fishery; (2) to rebuild Atlantic sea scallop stocks; (3) to collect better information relating to these stocks and to scallop fishing; (4) to develop progressive measures (such as rotational fishing) that increase the economic return to the scallop fishermen while rebuilding scallop stocks and achieving conservation objectives; and (5) to develop scallop fishing gear and techniques that reasonably serve to reduce scallop fishing gear’s interaction with non-target species and the bottom/habitat.

5. Personally, I am owner of Solveig’s Settlement House of Fairhaven, Massachusetts.  Fairhaven is part of the major national fishing port of greater New Bedford, Massachusetts.

6. As a settlement house, Solveig’s provides administrative and accounting support to over 70 commercial fishing vessels holding permits to fish in the United States, with a majority holding full-time permits for the Atlantic sea scallop fishery.

7. Many of Solveig’s clients have been in the Atlantic sea scallop fishing industry in the New Bedford area for generations.

8. Solveig’s operations depend on the continued existence of an economically viable United States Atlantic sea scallop fleet.

9. In 1998, the New England Fishery Management Council (“NEFMC”) began to consider proposals to enhance stock rebuilding efforts in the Atlantic sea scallop fishery pursuant to the requirements of the Sustainable Fisheries Act.  The Department of Commerce and its National Marine Fisheries Service (“NMFS”) have authority over this matter.

10. The enhanced rebuilding regime was to be contained in what was termed as Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan (“Scallop FMP”).

11. The NEMFC is composed of representatives from the New England coastal states and NMFS and has primary authority under the Magnuson-Stevens Act  for recommending measures to the Defendants Secretary and NMFS to conserve and manage Atlantic sea scallop and Northeast multispecies (or "groundfish") stocks.

12. The Amendment 7 proposals under consideration by NEFMC to rebuild Atlantic sea scallop stocks were so severe that they threatened to reduce the number of days-at-sea (“DAS”) available to full-time scallop fishing vessels to levels at which the vessels could not cover their costs and economically survive.  Indeed, Amendment 7 threatened to place the way of life and economic existence of the Atlantic sea scallop fleet (and related businesses such as mine) at risk.

13. As ultimately adopted, Amendment 7 required a reduction in DAS to 51 for fishing year 2000-01 (from a level of 120 DAS for fishing year 1999-2000), and to even lower levels in the eight remaining years of its rebuilding schedule.  I know from my experience, that full-time scallopers cannot possibly survive economically with DAS reductions of this magnitude.
 

14. NMFS itself has estimated, in connection with issuing Amendment 7, that full-time scallop fishermen would generally need well over 100 DAS each year to break-even.  Amendment 7's plainly stated conclusion as to its economic impact is that "the full-time scallop vessels will not be able [to] maintain their economic viability under any of the alternatives proposed by this amendment during the first six to nine years of the program." This is a matter of economic life or death to the full-time scallop fleet.
 
15. Seeking to preserve our businesses, we sought alternatives to prevent the bankruptcy of this important regional industry. Specifically, in the Winter of 1998, I began working with certain of Solveig’s clients, as well as other scallop vessel owners in the region, to organize and obtain funding for an entity that we named the Fisheries Survival Fund.

16. From the start, FSF recognized that, to fulfill its goals, FSF and its participants would have to be very active in the deliberations and processes of the NEFMC.

17. A fishery management council, such as the NEFMC, functions essentially as a legislative body and relies on committees of its members, agency scientists, industry, and technical working groups, and input from the public generally in developing fishery conservation and management measures. The NEFMC has a Scallop Oversight Committee which assists it in developing and considering scallop conservation and management measures. The Scallop Oversight Committee, comprised of a sub-set of Council members, is assisted by a Scallop Plan Development Team comprised of Federal, state, university, and private sector scientists.  It is also assisted by a panel of scallop industry advisers.

18. In addition, the NEFMC has constituted other committees that, from time to time, have an interest in matters of concern to the Atlantic sea scallop fishery because scallopers share the ocean with others.  These other committees include, but are not limited to, the NEFMC's Groundfish Committee, Habitat Committee, and Gear Conflict Committee.  These other committees of NEFMC members also have technical and other committees to assist them.

19. Through these processes, the NEFMC attempts to develop measures to recommend to the Secretary of Commerce that address the full-range of considerations that might be involved in a matter of concern to the Atlantic sea scallop fishery.
 
 

20. Upon its inception in 1998, FSF participants realized they needed technical and scientific assistance. We enlisted the services of Dr. Brian Rothschild, the Director of the Center for Marine Sciences and Technology at the University of Massachusetts-Dartmouth (“CMAST”).  Dr. Rothschild has since also become the Dean of the University of Massachusetts Intercampus Graduate School of Marine Sciences and Technology.

21. FSF participants began working with Dr. Rothschild on an industry-funded effort to use commercial scallop vessels to determine the actual state of the scallop resource in the Georges Bank region of the Atlantic Ocean. Approximately one-half of the Georges Bank has been closed to scallop fishing since 1994 to protect groundfish stocks.  Prior to the closures, scallopers had fished in the closed areas for decades, if not for a century.  FSF’s review of NMFS data indicates that the closed areas have historically accounted for more than half of U.S. Georges Bank scallop landings by weight.

22. Fisheries Survival Fund participants and Dr. Rothschild believed that the scallop stocks in the Georges Bank closed areas should have increased dramatically during the period of the closure because scallops grow so quickly.

23. The scallop industry funded the sampling.  Vessels participating in the sampling program provided CMAST a portion of the proceeds from the scallops harvested during the sampling that they would be permitted to retain and sell.

24. Once Dr. Rothschild agreed to assist FSF, he and CMAST began working with the Northeast Region of the NMFS to design a sampling protocol and to apply for an experimental fishery permit to conduct this industry sampling.  CMAST, FSF, and NMFS also began working with the Virginia Institute of Marine Sciences of the College of William & Mary (“VIMS”) in this research project.

25. We hoped and intended that the Georges Bank Closed Area sampling project would initiate three processes.

26. First, the systematic sampling effort was designed to estimate how many scallops were in the closed areas of Georges Bank, determine where large concentrations of scallops are in the closed areas, discover where the scallops are large (and best suited for harvest) within any such concentrations, and ascertain the location (if any) of high concentrations of groundfish susceptible to capture by scallop gear (so that unintended capture of groundfish by scallop dredge -- called “bycatch”-- could be reduced and minimized if these closed areas were re-opened).

27. Second, if, as we expected, large concentrations of relatively large scallops were found in these closed areas, we hoped that NEFMC/NMFS process would permit us to fish on these relatively large concentrations of large scallops in a careful and limited way, consistent with the range of objectives NMFS/NEFMC must fulfill.

28. Scallop fishermen have long understood from a practical perspective (and they are increasingly understanding from a scientific perspective) that the best way to rebuild scallop stocks is rotate scallop fishing, that is, to direct scallop fishing onto relatively large concentrations of relatively large scallops, while letting smaller scallops grow.  In addition, as we ultimately discovered, many of the scallops in the closed areas are getting to be so old they are at an increased risk of dying of old age.

29. Somewhat like a land farming crop rotation strategy, a rotational scallop harvest strategy promotes scallop rebuilding in the following ways.  By causing fishermen to catch relatively larger scallops, the fishing strategy increases the yield from each scallop. Increasing scallop yield is a primary rebuilding goal of Amendment 7.  In addition, if relatively larger scallops are harvested, scallop fishermen can harvest the poundage of product needed to remain economically viable while killing fewer individual scallops, which thereby reduces what is known as the fishing mortality rate, or "F."  Amendment 7 also requires reductions in F.  In addition, transitioning scallop fishing to relatively larger animals permits relatively smaller scallops to mature and reproduce before they are harvested.  An individual scallop permitted to mature also has the capacity to spawn a great many offspring, which also helps scallop rebuilding.

30. The Georges Bank closures have certain negative effects for Atlantic scallops overall, however.  While the Georges Bank closures may have permitted scallops to grow in that portion of the ocean bottom, the closures were concentrating scallop fishing effort onto the currently open areas.  But, because of the Georges Bank closures, scallopers had no place to go when the open areas needed a rest.  This unbalanced fishing effort contributed in large measure to the perceived need for Amendment 7 to be so incredibly strict.

31. Such a rotational harvest strategy also holds the promise of other ecological benefits.  By fishing in areas of high concentrations of scallops, scallop fishermen are able to reduce the amount of time their scallop dredges spend on the bottom of the ocean.  By that step alone, it is possible to reduce the dredge's impact with the ocean bottom and the potential that the dredge will inadvertently harvest other fish species, such as groundfish, monkfish, skates, and others.

32. A rotational plan will also close areas with high densities of small scallops to scallop fishing to permit scallops in these areas to grow out, consistent with scallops' rapid growth rate.

33. For its part, Amendment 7 specifically contemplated the development of rotational fishing as a way to enhance rebuilding and lesson economic impact.

34. Third, we hoped that the revelation of the actual abundance of scallops in the Georges Bank Closed Areas would lead to an NEFMC/NMFS reconsideration of the actual state of the Atlantic sea scallop resource, that is, to a reconsideration of the degree (if any) to which the Atlantic sea scallop resource, as a whole, was overfished, and to a reconsideration of the profound reductions in fishing effort that were contained in Amendment 7.

35. We understood that the NEFMC and NMFS had recommended the DAS reductions contained in Amendment 7 because, at the time the DAS reductions were calculated, the relevant scientists and decision-makers had concluded reductions of that magnitude were necessary to rebuild the scallop resource pursuant to the requirements of the Sustainable Fisheries Act.

36. Amendment 7 specifically contemplates that future years’ DAS allocations should be re-considered and adjusted via the framework adjustment process as new information becomes available.

37. Happily, Mother Nature, pre-existing scallop conservation measures, and the Groundfish Closed Area scallop growth have all been rebuilding scallop stocks faster than Amendment 7 projected.  Amendment 7 was based on scientific data and information from 1997 and before, even though regulations promulgating Amendment 7 were not issued until March 29, 1999.

38. Data and information since 1997, including that which the FSF has helped to collect, have shown that scallop stocks are well ahead of the Amendment 7 rebuilding schedule, which was to extend to 2008.  Indeed, on March 3, 2000, NMFS stated in the Federal Register that the Georges Bank scallop stock would be rebuilt by 2005 and the Mid-Atlantic scallop stock would be rebuilt by 2003.  (There have also been two extensive and effective closures of beds of small scallops in the Mid-Atlantic and off Virginia Beach.)

39. The FSF, its participants, scientific and technical consultants, and counsel have been working very hard within the NEFMC/NMFS processes to achieve the objectives set forth above.

40. On June 11, 1998, the FSF submitted to the Secretary of Commerce a Petition for Rulemaking under the Administrative Procedure Act, requesting, “the Immediate Systematic Sampling and then the Limited, Rotational Opening of the Georges Bank Closed Areas to Atlantic Sea Scallop Fishing.”

41. Ultimately, NMFS denied the Petition for Rulemaking, but NMFS and the NEFMC developed a limited rotational re-opening of Georges Bank Closed Area II in 1999 and limited rotational re-openings of all three Georges Bank Closed Areas for 2000.

42. In the summer and fall of 1998, FSF participants worked with NMFS, CMAST, and VIMS to conduct a systematic sampling of the Georges Bank Closed Area II using commercial scallop gear.

43. A fishing group popularly associated with the environmental community, the Cape Cod Commercial Hook Fishermen's Association, sought a temporary restraining order from the United States District Court for the District of Massachusetts to prevent the sampling activity.  The district court permitted the FSF to intervene in the action on the Government's side to support the sampling program.  The court refused to issue injunctive relief, and ultimately permitted the sampling to proceed.  See Cape Cod Commercial Hook Fishermen’s Assoc. v. Daley, 30 F.Supp.2d 111 (D. Mass. 1998).

44. In early 1999, committees of the NEFMC began considering framework adjustments to the Atlantic Sea Scallop Fishery Management Plan and the Northeast Multispecies (Groundfish) Fishery Management Plan that would open Georges Bank Closed Area II to limited scallop fishing. A framework adjustment is a way to amend a fishery management plan that can be accomplished in several months, rather than years.

45. A framework adjustment was also needed for the Groundfish FMP because the Georges Bank Closed Areas were implemented under the terms of that FMP.  Another important aspect of Groundfish Committee jurisdiction over any potential opening was that it permitted this committee (which had as its charter the conservation and management of groundfish stocks and an interest in protecting habitat favored by groundfish) to be involved in a detailed way in designing the opening.

46. Over the next six months, the NEFMC held over twenty meetings of its constituent committees, including a series of its own meetings, before it approved a recommendation to NMFS for Framework 11 to the Scallop FMP and Framework 29 to the Groundfish FMP.  These measures were subjected to layers of scientific and technical review.  The combined framework resulted in the opening of Georges Bank Closed Area II to limited scallop fishing to, at most, the period June 15, 1999, through December, 1999.

47. The combined framework was designed to be "conservation neutral" in that it was not projected to increase the fishing mortality rate for the fishing year 1999-2000 above the level prescribed in Amendment 7.

48. The FSF, its participants, scientific and technical consultants, and counsel participated in virtually every (if not every) public meeting during the NEFMC's and its committees’ and sub-committees’ development, consideration, and recommendation of the combined framework adjustment measures.

49. The combined framework contained many restrictions on the opening, that not only lessened the opening’s environmental impacts, but actually made the impacts positive.  First, any scalloper could only harvest 10,000 pounds of scallops in any closed area trip, and the scalloper would be charged 10 DAS for the trip, even if the scalloper harvested 10,000 pounds of scallops without having to use a full 10 DAS to do so.

50. Because of the scallop abundance encountered in Closed Area II, I am not aware of any scalloper that actually needed all of his 10 DAS to catch his 10,000-pound trip.  Thus, scallopers actually forfeited DAS by participating in the closed area fishery.

51. The reduction in fishing effort from the "10 for 10" trade-off reduced the amount of contact that scallop dredges had with the bottom.  In addition, because the dredges came up so full of scallops, scallopers needed fewer numbers of tows to harvest their 10,000 pounds of scallops than they would have needed to harvest their trips in areas outside the limited Closed Area II opening, which also reduced dredge bottom time.

52. FSF proposed the 10,000 pound/10 DAS trade-off during the early stages of the development of the combined frameworks.  FSF also proposed, and ultimately it was adopted, that each vessel be permitted only a limited number of trips into the Closed Area.

53. To be consistent with Amendment 7, a total allowable catch of scallops of 9.584 million pounds was set for the Closed Area II fishery.

54. In addition, after careful consideration of groundfish, habitat, and gear conflict considerations, the combined framework only opened the southern half of Georges Bank Closed Area II.

55. Other measures were instituted to protect groundfish.  First, the opening was limited in time from June 15 to December 31, 1999,  because the scientific information revealed that groundfish spawning aggregations were not known to occur in Closed Area II during that time period.

56. Second, the combined frameworks mandated a significant increase in the size of the twine net mesh on the top of scallop dredges used inside the Closed Area II fishery to 10" or greater on the diamond and to 8" or greater outside the Closed Area II fishery, a quantum increase from the former permitted level of 5-1/2".  Increasing the mesh size on the twine top permits more and larger groundfish and other fish inadvertently caught in the dredge ("bycatch") to escape out of the dredge as it is towed and then hauled back to the surface.

57. Also, the Closed Area II opening was subject to a total allowable catch ("TAC") of 387 mt of Georges Bank yellowtail flounder.  This was designed to limit yellowtail flounder bycatch.  A detailed observer program, with 25% coverage of the Closed Area II trips, was implemented to be able to monitor the yellowtail flounder bycatch and project when it neared the TAC level.  Scallopers would not encounter cod or haddock in any meaningful amounts in Closed Area II in the summer and fall.  The yellowtail flounder TAC was determined to be consistent with the Georges Bank yellowtail flounder rebuilding plan.  In addition in making the yellowtail TAC count, the regime assumed that every yellowtail brought aboard would die, even though many swim away when returned to the sea.

58. A buffer "no fishing" zone was created around Closed Area II for the duration of the opening to help police the restrictions set forth above.

59. Ultimately, the scallop fleet harvested approximately 5 million pounds of scallops before the yellowtail flounder TAC was reached and the Closed Area II scallop fishery was closed.

60. The scallops harvested from Closed Area II were consistently larger in size and weight than any I had ever seen in all my years working with the scallop industry – just beautiful product.

61.  Moreover, the Closed Area II fishery lasted much, much longer than many had expected because scallopers were able to work to reduce their yellowtail flounder by catch to about 20% of the expected level during scallop fishing in Closed Area II.  The FSF assisted in this effort by disseminating bycatch reduction techniques and pointers to captains participating in the Closed Area fishery.

62. FSF participants also worked to increase knowledge and information about the Groundfish Closed Areas during the summer of 1999, even though there was lucrative scallop fishing to be had.

63. First, FSF participants worked with CMAST scientists to design and implement a video surveying technique that systematically sampled both scallops and sea bottom habitat (bottom substrate and other organisms) in the Groundfish Closed Areas.  The video sampling thus gathered more data than the dredge survey.

64. CMAST has reported on its work to the NEFMC and the information presented in CMAST's reports have been integrated into the deliberations for the 2000 Georges Bank Closed Area openings.

65. Second, FSF participants worked with NMFS scientists to systematically sample Groundfish Closed Area I and the Nantucket Lightship Closed Area in a manner similar to that employed by CMAST in Groundfish Closed Area II during the preceding summer.

66. In addition, in the summer of 1999 and at other times, FSF participants have worked with noted gear technologists to design and test dredges that reduce the potential for inadvertently catching other species and to reduce potential habitat interactions.

67. FSF continued to participate in the following NEFMC/NMFS processes during the remainder of 1999 and into 2000.

68. First, the NEFMC initiated a framework adjustment process in the late summer of 1999 to adjust Atlantic sea scallop permit holders' DAS allocation for fishing year 2000-01.  Originally, that same framework adjustment was to include the scallop fishery-related provisions for another limited rotational re-opening of certain Georges Bank Closed Areas for 2000.  The measure was denominated Scallop Framework Adjustment 12.

69. Ultimately, in order to provide the Groundfish Committee and the NEFMC more time to address the Georges Bank openings from, among others, a groundfish and habitat perspective, the NEFMC voted at its November 17, 1999, meeting in Gloucester, Massachusetts to separate the openings into a later Scallop Framework Adjustment 13, which was integrated with Groundfish Framework Adjustment 34.

70. FSF participants, consultants, and counsel participated in each and every of the twenty-plus public meetings of the NEFMC and its constituent committees that led to the development and recommendation of Scallop Framework Adjustments 12 and 13 and Groundfish Framework Adjustment 34.

71. Consistent with the information from NMFS and cooperative industry/academia/NMFS scientific efforts that showed remarkable rebuilding and growth of scallop stocks, Scallop Framework Adjustment 12 maintained DAS for fishing year 2000-01 at the 120 DAS level set by Amendment 7 for fishing year 1999.

72. It is important to understand that 120 DAS still represents a huge reduction in scallop fishing effort from historic levels.  Amendment 4 to the Scallop FMP, which initiated the DAS effort reduction program for rebuilding of the Atlantic sea scallop fishery, imposed the following DAS allocations on full-time scallop permit holders:  182 days (1995-96 and 1996-97 seasons), 164 days (1997-98 season), 142 days (1998-99 and 1999-2000 seasons) and 120 days (2000-01 and thereafter). Amendment 4 was ultimately replaced by Amendment 7, which set DAS at 120 for 1999-2000, with the bankrupting reductions referenced above in the nine years from 2000-2008.  By contrast, in my experience, in 1993, prior to Amendment 4, the average full time scallop fishing vessel was away at sea for over 200 days.

73. Amendment 4 also limited crew size to seven, which reduced a vessel’s shucking capacity and hence potential productivity per DAS.  Ring sizes were also mandated to be increased in the scallop dredge to permit smaller size scallops to escape the dredge, grow, and reproduce.

74. Turning back to 1999, because of the increase in scallop abundance, Framework Adjustment 12 was not very controversial at the NEFMC level.  Indeed, at one point, the NEFMC asked its technical and scientific staff to analyze whether even more than 120 DAS (for instance, the 142 DAS level from 1998-99) should be permitted for 2000-01.  Ultimately, the NEFMC voted to approve the Framework Adjustment 12 DAS increase to 120 DAS with no dissenting votes (12 for; 0 against; 4 abstaining).

75. NMFS published regulations implementing Framework Adjustment 12 on March 3, 2000.

76. The 2000-01 fishing year began on March 1, 2000.  Since that time, scallop fishermen have been operating based on their allocation of 120 DAS.  In my experience, many of these full-time scallop fishermen have used more than the 51 DAS that they would have been allotted for fishing year 2000-01 under original Amendment 7.  Using fishing days early in the fishing year makes sense; the spring and summer represent the good weather months for fishing in the North and Mid-Atlantic; this period also corresponds to the time when scallop yields are generally considered the best due to biological attributes of scallops.

77. I am very concerned that many full-time scallop fishermen, including my clients and other FSF participants, have already fished more than 51 DAS in this fishing year, and that the relief sought in this action, if granted, could subject them to a penalty in future years from the potential for a retroactive determination of a DAS overage in this fishing year.

78. Combined Scallop Framework Adjustment 13 and Groundfish Framework Adjustment 34, which resulted in a decision to open all three of the Groundfish Closed Areas in a very limited way for the year 2000 only, were modeled on the prior year's opening of Closed Area II.   The openings were again designed to be "conservation neutral" in terms of Amendment 7's scallop fishing mortality goal.

79. Scallop total allowable catch levels were set for each closed area which are designed to limit the amount of scallop fishing in these closed areas to be consistent with Amendment 7's overall rebuilding goals.

80. Total allowable catch limits were also set for both Southern New England and Georges Bank yellowtail flounder stocks, which TACs are consistent with the SFA rebuilding plans for these fish.  An observer program has again been implemented to monitor these TACs.

81. The openings were again tailored in time to avoid the potential for interaction with groundfish spawning aggregations.  Closed Area II is to be open from June 15 through August 14, 2000; the Nantucket Lightship Closed Area from August 15 through September 30, 2000; and Closed Area I from October 1 through December 31, 2000.

82. During the framework development process, these openings were also made shorter in duration – no two areas are open simultaneously – to enhance enforcement and monitoring.

83. Only discrete portions of the three Groundfish Closed Areas are being opened.

84. Only that part of Closed Area II that was opened last year has been opened again.  Only a small part of the northeast corner of the Nantucket Lightship area will be opened.  Only a diagonal strip through Closed Area I will be opened.  I understand that the reason that these openings are so discrete is that they were designed to keep scalloping away from bottom surfaces and habitat that might be important to groundfish and to avoid areas where there might be a greater potential for groundfish bycatch.  The CMAST video surveying and the NMFS systematic surveying conducted in these closed areas have helped to tailor these openings.

85. As was the case for the previous opening, the combined frameworks for 2000 provide for a set-aside of scallop and yellowtail TAC to fund closed area research efforts designed to address scallop abundance, bycatch reduction, and habitat issues, among other things.

86. To enhance enforcement, scallopers fishing in the closed areas this year will have to agree to be subject to a higher level of electronic monitoring of their fishing effort via a global positioning system which is mandatory for scallop vessels and reports the vessels' exact locations to NMFS enforcement several times each hour.

87. Moreover, each scalloper will only be able to take a limited number of trips into each closed area.  The limit is three trips to Closed Area II, two trips to Closed Area I, and one trip to the Nantucket Lightship Closed Area, provided the yellowtail flounder bycatch TACs are not reached first.

88. In addition, the 10 DAS for 10,000 pounds trade-off has been maintained, even though many in the scallop industry believe that they should have been permitted a more favorable trade-off because scallop trips outside the Georges Bank Closed Areas have become so much more productive due to the rebuilding of the scallop resource in these areas outside the Groundfish Closed Areas.

89. Scallopers are especially looking forward to the ability to fish in Closed Area I and the Nantucket Lightship Area for the first time since 1994.  Based on information from the CMAST and NMFS sampling efforts, the areas slated for openings contain dense concentrations of large scallops with a high yield.  As explained above, one of Amendment 7's rebuilding goals is to increase scallop yield.

90. FSF is very pleased that NMFS and the NEFMC have been taking steps to ensure that rotational fishing will not be limited to year-by-year adjustments to allow limited fishing in the Georges Bank closed areas.

91. In 2000, while the development of this year's Georges Bank rotational measures was ongoing, the NEFMC initiated the development of Amendment 10 to the Scallop FMP.  Amendment 10 is set to contain a comprehensive rotational scallop fishing system for the entire range of the Atlantic sea scallop stock under federal regulation.

92. I understand that the NEFMC and NMFS expect that Amendment 10 will involve the preparation of a full supplemental environmental impact statement under the National Environmental Policy Act, to supplement the environmental impact statement prepared in 1998-99 for Amendment 7.

93. The NEFMC Amendment 10 development processes began with planning and scoping meetings in Virginia, New Jersey, and Massachusetts, and have continued with meetings of the NEFMC and its committees during the winter, spring, and summer.  There have already been well  over 20 days of meetings for Amendment 10, if not considerably more.  FSF participants,  scientific and technical consultants, and counsel have attended every day of meetings, except (I believe) one day.

94. Despite my initial trepidation at taking on so large a task, the FSF proposed a rotational fishery management plan for Amendment 10 crafted for us by a respected Canadian scientist with scallop expertise, Dr. Trevor Kenchington of Gadus Associates.  Dr. Kenchington has literally been on the road to New England for weeks (and, for a time, almost every week) to participate in NEFMC committee meetings relating to the development of Amendment 10.  In fact, even prior to any  NEPA public hearing process on Amendment 10, the NEFMC's Scallop Committee has had a series of multi-day long meetings itself, as well as in joint session with the NEMFC's Groundfish, Law Enforcement, Gear Conflict, and Habitat Committees, to consider implications of a comprehensive scallop rotational plan and to seek to learn and address many of these committees' concerns in advance of presenting a rotational proposal for public hearing.

95. After this marathon series of meetings, the NEFMC voted to include the FSF's rotational proposal in the options to be considered at public hearing on Amendment 10.  Indeed, the NEFMC voted that FSF's proposal (revised and simplified after and in response to these many meetings) is to serve as the basic architecture for consideration of rotational approaches at public hearing.

96. Needless to say, the Amendment 10 development process is a lengthy one that is supposed to culminate during 2001.  The FSF understands that the development process must be lengthy in order to comply with the many applicable legal requirements and to adequately consider the ramifications of such a comprehensive rotational scallop fishing plan.

97. I do not believe that the necessary time that it takes to develop Amendment 10 should be a reason for causing the scallop fishing industry to be forced to return to the bankrupting 51 DAS for fishing year 2000 (especially in light of the massive increase in scallop abundance since the surveys on which Amendment 7 was based) or to be denied access to the Georges Bank Closed Areas in the discrete, careful, and environmentally positive way set out in the 2000 combined frameworks.

FURTHER DECLARANT SAYETH NOT.

I declare under the penalty of perjury that the foregoing is true and correct.

_________________________  ______________    Marjorie J. Orman    Date