[Federal Register Volume 68, Number 186 (Thursday, September 25, 2003)]
[Proposed Rules]
[Pages 55358-55361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24250]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 030908223-3223-01; I.D. 081403B]
RIN 0648-AP57


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Surfclam and Ocean Quahog Fishery; Amendment 13 to the Surfclam and 
Ocean Quahog Fishery Management Plan

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement Amendment 13 to the 
Surfclam and Ocean Quahog Fishery Management Plan (FMP). This proposed 
rule would establish: A new surfclam overfishing definition; multi-year 
fishing quotas; a mandatory vessel monitoring system (VMS), when such a 
system is economically viable; the ability to suspend or adjust the 
surfclam minimum size limit through a framework adjustment; and an 
analysis of fishing gear impacts on Essential Fish Habitat (EFH) for 
surfclams and ocean quahogs. The primary purpose of this proposed 
action is to rectify the disapproved surfclam overfishing definition 
and the EFH analysis and rationale contained in Amendment 12 in order 
to comply with the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act), and to simplify the regulatory requirements 
of the FMP.

DATES: Comments must be received at the appropriate address or fax 
number, (See ADDRESSES), on or before 5 p.m., local time, on October 
27, 2003.

ADDRESSES: Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on Amendment 13 to Atlantic Surfclam and Ocean Quahog 
Fishery.'' Comments also may be sent via facsimile (fax) to (978) 281-
9135. Comments will not be accepted if submitted via e-mail or 
Internet.
    Copies of the FMP, its Regulatory Impact Review (RIR), the Initial 
Regulatory Flexibility Analysis (IRFA), and the Final Environmental 
Impact Statement (FEIS) are available from Daniel T. Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council, 300 S. New Street, 
Dover, DE 19904.

FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Supervisory Fishery 
Policy Analyst, 978-281-9252, fax 978-281-9135, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Amendment 12 to the FMP was prepared by the Mid-Atlantic Fishery 
Management Council (Council) to bring the FMP into compliance with the 
Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 
1996. On April 28, 1999, the Council was notified that NMFS partially 
approved Amendment 12. Specifically, two Amendment 12 measures were 
disapproved, the surfclam overfishing definition and the analysis and 
rationale for the status quo alternative for addressing fishing gear 
impacts to EFH. To rectify these disapprovals, the Council prepared, 
and NMFS published, a Notice of Intent to Prepare an Environmental 
Impact Statement (EIS) in the Federal Register, officially beginning 
the Council's scoping process for Amendment 13 (66 FR 13694, March 7, 
2001). The Council held a scoping hearing on March 21, 2001, and 
accepted scoping comments on the amendment during the period March 7 
through April 6, 2001. In addition to the surfclam overfishing 
definition and EFH alternatives, other issues identified for inclusion 
in the EIS were multi-year quotas, a mandatory VMS requirement and a 
permanent suspension of the surfclam minimum size limit. The Council 
identified a range of alternatives for each of these five issues and 
approved the alternatives in a public hearing document at its May, 2002 
meeting. A Notice of Availability (NOA) on the DSEIS was published in 
the Federal Register on August 30, 2002 (67 FR 55838), with a comment 
period ending October 15, 2002. There were a series of three public 
hearings held (one each in the states of Maine, New Jersey and 
Delaware). After consideration of all public comments, the Council 
chose the following alternatives at its January, 2003 meeting and voted 
to submit the Amendment 13 document, including the draft final 
supplemental environmental impact statement to NMFS. The Amendment 13 
measures contained in this action propose multi-year fishing quotas and 
the ability to suspend or adjust the surfclam

[[Page 55359]]

minimum size limit through a framework adjustment. The analysis of 
fishing gear impacts on EFH for surfclams and ocean quahogs, a new 
surfclam overfishing definition, and a mandatory VMS are not 
accompanied by regulatory text because either they are non regulatory 
in nature (fishing gear impacts on EFH and the new overfishing 
definition) or implementation is deferred (a mandatory VMS 
requirement). However, information on these alternatives is presented 
in the preamble.

Surfclam Overfishing Definition

    The surfclam overfishing definition contained in Amendment 12 was 
disapproved because it was based on the sustainability of that portion 
of the surfclam stock located in the northern New Jersey area. Although 
80 percent of the surfclam fishery has taken place off northern New 
Jersey over the past decade, the Amendment 12 surfclam overfishing 
definition did not represent the entire resource, as required by 
National Standard 3.
    The surfclam overfishing definition recommended by the Council is 
based on the advice of the 30th Stock Assessment Workshop (SAW 30, 
April 2000), which incorporated the results of a research survey that 
took place during the summer of 1999. In addition, the proposed 
overfishing definition applies to the entire resource, versus focusing 
on the northern New Jersey area component of this stock. The proposed 
surfclam overfishing definition is as follows: Biomass target 
(Btarget) = 1/2 of current biomass (as a proxy for the 
biomass level at maximum sustainable yield (Bmsy)); biomass 
threshold (Bthreshold) = 1/2 the biomass target; fishing 
mortality threshold (Fthreshold) = fishing mortality at 
maximum sustainable yield (Fmsy), where the current proxy 
for Fmsy is the natural mortality rate for surfclams (M); and the 
fishing mortality target (Ftarget) would always be set less 
than the Fthreshold and would be equivalent to the fishing mortality 
rate (F) associated with the quota selected by the Council.

Fishing Gear Impacts on EFH

    The Amendment 12 no action alternative for addressing fishing gear 
impacts to EFH for surfclams and ocean quahogs was disapproved because 
the rationale and analysis for selecting this preferred alternative was 
insufficient. To address this insufficiency, the Council evaluated nine 
alternatives to minimize fishing gear impacts to EFH, most of which 
focus on closed areas. The relatively recent ``Workshop on the Effects 
of Fishing Gear on Marine Habitats off the Northeastern United States'' 
(Workshop, October 2001) concluded that the effects of hydraulic clam 
dredges were limited to sandy substrates, since this type of gear is 
not used on muddy or gravel substrates. The Workshop panel also agreed 
that hydraulic clam dredges have important habitat effects, but that 
only a small area is affected by this type of gear. In summary, the 
Workshop panel concluded that because the surfclam fishery is primarily 
prosecuted in sandy habitats, its effect is limited to potentially 
large, but localized impacts to biological and physical structure. 
Furthermore, because the recovery time is relatively short for this 
high energy environment, the impacts can be considered temporary. In 
addition, because these impacts potentially affect a relatively small 
portion (approximately 100 square nautical miles) of the overall large 
uniform area of high energy sand along the continental shelf, they can 
be considered minimal. The Workshop panel also indicated that other 
measures, such as reductions in effort or gear modifications, are not 
practicable. Thus, based on information from the Workshop, NMFS 
proposes that no action be taken at this time to mitigate fishing gear 
impacts on EFH.

Multi-year Quotas

    This proposed rule would replace the current annual specification 
process with a process that would allow the Council to establish 
specifications to be in effect for up to three fishing years, provided 
that an annual evaluation of the surfclam and ocean quahog status is 
undertaken. This multi-year specification process would allow the 
Council and NMFS to be more efficient by streamlining the regulatory 
process, and would provide the industry with greater regulatory 
consistency and predictability. The intent of this provision is to make 
the 3-year maximum quota setting process coincide with the Northeast 
Fisheries Science Center's clam survey and subsequent stock assessment, 
which occur approximately every 3 years. This would provide the Council 
with the most recent scientific information available in setting the 
specifications for these two species. However, the maximum three-year 
specification process is not meant to curtail the Council from setting 
specifications during the interim years if information obtained during 
the annual review indicates that the surfclam and ocean quahog 
specifications warrant a change, e.g., to comply fully with the 
Magnuson-Stevens Act.

Mandatory VMS

    Amendment 13, if approved, would authorize NMFS to implement a 
mandatory VMS requirement based on analysis provided by the Council. At 
that time, the Council would submit to NMFS the applicable paperwork to 
conform with the Paperwork Reduction Act, and submit a full economic 
analysis pertaining to this new requirement. Once these Council 
submissions are complete, NMFS will publish a proposed rule. The 
Council intends that such a program would be implemented through three 
phases as follows: (1) VMS notification to replace the existing 
surfclam/ocean quahog call-in system; (2) electronic vessel reporting 
that would replace the existing vessel logbook; and (3) collection of 
scientific information on a tow-by-tow basis. In addition, the Council 
could decide to monitor closed areas to better aid enforcement. 
However, this would be done independently of the other three phases.

Frameworkable Measures

    Finally, this proposed rule would add to the list of frameworkable 
management measures the ability to suspend or adjust the surfclam 
minimum size limit. Currently, NMFS conducts an annual analysis to 
determine if discards or survey data indicate that 30 percent of the 
surfclams are smaller then 4.75 in (12.06 cm). If it is determined that 
30 percent of the surfclams are not smaller than 4.75 in (12.06 cm), 
NMFS publishes a notice in the Federal Register to suspend the surfclam 
minimum size limit. This suspension has been done every year since the 
implementation of the individual transferable quota program in 1990. 
However, due to concerns expressed by some industry members, as well as 
Council concern that it may be more difficult to implement a change 
rather than to suspend a current provision, the Council voted to 
maintain the no action alternative and add to the list of frameworkable 
management measures the ability to suspend or to adjust the surfclam 
minimum size limit.

Classification

    At this time, NMFS has not determined that the Amendment, which 
this proposed rule would implement, is consistent with the national 
standards of the Magnuson-Stevens Act and other applicable laws. NMFS, 
in making that determination, will take into account the data, views, 
and comments received during the comment period.

[[Page 55360]]

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an initial regulatory flexibility analysis 
(IRFA) as required by section 603 of the Regulatory Flexibility Act. 
Additionally, the Council in cooperation with NMFS prepared a 
supplement to the IRFA. The IRFA describes the economic impact that 
this proposed rule, if adopted, would have on small entities. A summary 
of the analysis follows:
    A description of the reasons why this action is being considered, 
and the objectives and legal basis of this proposed rule are contained 
in the SUMMARY and in the SUPPLEMENTARY INFORMATION of this proposed 
rule and are not repeated here. There are no recordkeeping, reporting, 
or other compliance costs resulting from this action. It would not 
duplicate, overlap, or conflict with any other Federal rules.
    All of the affected businesses (fishing vessels) are considered 
small entities under the standards described by the Small Business 
Administration because they have annual returns (revenues) that do not 
exceed $3.5 million annually.
    The economic impacts of actions were analyzed by employing 
quantitative approaches to the extent possible. When appropriate data 
was lacking, or the action was administrative in nature, a qualitative 
approach was employed. Effects on profitability associated with the 
proposed management measures should be evaluated by looking at the 
impact the proposed measures would have on individual vessel costs and 
revenues. However, in the absence of cost data for individual vessels 
engaged in these fisheries, changes in gross revenues are used as a 
proxy for profitability.
    In 2003, there were 1590 vessels that held permits in the surf clam 
fishery and 1602 that held permits in the ocean quahog fishery. Of 
these vessels, 1590 held both the ocean quahog and surf clam permit 
simultaneously. The proposed action could affect any vessel holding an 
active Federal permit for either species. However, the commercial use 
of the permit is limited to vessels fishing under an individual fishing 
quota or fishing in the Maine mahogany quahog fisery. In 2001, there 
were 51 vessels that landed either surfclams (21 vessels), ocean 
quahogs (16 vessels), or both (14 vessels). There were 31 vessels in 
2001 that fished under the Federal limited access Maine mahogany quahog 
permit for Maine ocean quahogs.
    Management measures contained in this proposed rule would establish 
multi-year quotas and add the suspension of the surfclam minimum size 
limit and adjustment of the minimum size to the list of frameworkable 
measures under the FMP.
    None of the proposed management measures in this rule would result 
in a substantial change in revenues or profitability of vessels 
comprising these fisheries. Although additional alternatives were 
considered for these management measures, the preferred alternative 
would minimize economic impacts to the greatest extent possible.
    The proposal to revise the overfishing definition for surfclams 
does not alter the optimum yield of the fishery, a basis for 
determining annual quotas, and does not directly impact gross revenues. 
Therefore, no change to gross revenues is expected from this revision. 
However, an initial regulatory flexibility analysis must be prepared at 
the times when quotas or other management measures that control 
landings are proposed. The Council considered three alternative 
overfishing definitions, none of which would meet the requirements of 
National Standard 1 of the Magnuson-Stevens Act. As in the case of the 
preferred alternative, none of these alternatives would directly affect 
the profitability of individual vessels.
    The proposal to establish multi-year quotas and frameworkable 
minimum size limits and adjustments for surfclams are administrative 
and will not directly impact gross revenues. However, the Council will 
be required to prepare an initial regulatory flexibility analysis for 
each quota set by the Council and for each surfclam minimum size limit 
adjustment, if applicable.
    The Council considered two alternatives to the multi-year quota 
measure including the status quo and an alternative that would set 
multi-year quotas without annual review. The Council also considered 
two alternatives to the minimum size limits and adjustments including 
the status quo and an alternative to adjust minimum sizes when the 
multi-year decisions occur. All alternatives are purely administrative 
in nature. However, as explained above, any changes to annual quotas or 
adjustments to surfclam minimum size that could result from any 
alternatives considered would require, subject to the preparation of a 
proposed rule, preparation of regulatory flexibility analyses at that 
time.
    The Council is planning to establish a vessel monitoring program at 
a later point in time since the implementation of a system is dependent 
upon the determination by the Regional Administrator of an economically 
viable monitoring system. If and when the Regional Administrator 
determines that an economically viable monitoring system is achievable, 
the Council must prepare an initial regulatory flexibility analysis 
that fully examines the compliance costs associated with that system. A 
mandatory VMS requirement would be implemented through proposed and 
final rulemaking by a regulatory amendment.
    The Council proposes no change to existing management measures to 
address fishing gear impacts on EFH at this time. Therefore, there are 
no impacts on vessel gross revenues resulting from this aspect of 
Amendment 13. However, the Council analyzed potential closures of three 
areas as alternatives to the no action measure including a closing of 
the Georges Bank Area, the Southern New England East Area, and the 
Habitat Area of Particular Concern (HAPC) for Tilefish. For Georges 
Bank, there would be no economic impact to vessels since this area has 
been closed to fishing for surfclams and ocean quahogs for over ten 
years. Accordingly, no landings have been recorded from that area 
during the closure time. For Southern New England, the Council 
concluded that there would be minimally negative economic impacts to 
surf clam vessels. However, there could be substantially negative 
economic impacts to ocean quahog vessels. A closure in the Southern New 
England area would most likely affect surf clam and ocean quahog 
vessels fishing out of Massachusetts and Rhode Island since increased 
fuel costs needed to steam to another fishable area coupled with 
reduced gross revenue could reduce vessel profitability. The Council 
estimated that this closure would reduce gross revenues for quahog 
vessels by $1,065 per trip and for surfclam vessels by $2 per trip. The 
Council determined that the closure of the Tilefish HAPC could result 
in the largest negative impact to quahog vessels, with a loss in gross 
revenues of $2,637 per trip and a loss in profitability to surfclam 
vessels of $71 per trip. However, economic impacts from the closure of 
Tilefish HAPC are likely to be grossly overestimated relative to the 
actual area that would be specified in any regulations. The impacts are 
more a function of creating complete 10-minute squares for closures and 
attempting to minimize the jagged nature of the 250-ft (76.2-m) 
bathymetric contour. Based purely on sediment preference, it is 
unlikely ocean quahogs and tilefish would coexist in concentrated 
areas.
    The analysis in the IRFA indicates that there are no significant 
alternatives considered that would minimize

[[Page 55361]]

adverse economic impacts or increase economic benefits relative to the 
proposed management measures contained in this proposed rule.

List of Subjects in 50 CFR Part 648

    Fishing, Fisheries, Reporting and recordkeeping requirements.

    Dated: September 17, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

    2. Section 648.71 is revised to read as follows:


Sec.  648.71  Catch quotas.

    (a) Establishing quotas. Beginning in 2005, the amount of surfclams 
or ocean quahogs that may be caught annually by fishing vessels subject 
to these regulations will be specified for a three-year period by the 
Regional Administrator on or about December 1, 2004. The initial 3-year 
specification will be based on the most recent available survey and 
stock assessments for Atlantic surfclams and ocean quahogs. Subsequent 
3-year specifications of the annual quotas will be accomplished on or 
about December 1 of the third year of the quota period unless the 
quotas are modified in the interim pursuant to Sec.  648.71(b). The 
amount of surfclams available for harvest annually must be specified 
within the range of 1.85 to 3.4 million bu (98.5 to 181 million L) per 
year. The amount of ocean quahogs available for harvest annually must 
be specified within the range of 4 to 6 million bu (213 to 319.4 
million L).
    (1) Quota reports. On an annual basis, MAFMC staff will produce an 
Atlantic surfclam and ocean quahog annual quota recommendation paper to 
the MAFMC based on the latest available stock assessment report 
prepared by NMFS, data reported by harvesters and processors, and other 
relevant data as well as the information contained in paragraphs 
(a)(1)(i) thru (vi) of this section. Based on that report, and at least 
once prior to August 15 of the year in which a three year annual quota 
specification expires, the MAFMC, following an opportunity for public 
comment, will recommend to the Regional Administrator annual quotas and 
estimates of DAH and DAP within the ranges specified for a three year 
period. In selecting the annual quotas, the MAFMC shall consider the 
current stock assessments, catch reports, and other relevant 
information concerning:
    (i) Exploitable and spawning biomass relative to the OY.
     (ii) Fishing mortality rates relative to the OY.
    (iii) Magnitude of incoming recruitment.
    (iv) Projected effort and corresponding catches.
    (v) Geographical distribution of the catch relative to the 
geographical distribution of the resource.
    (vi) Status of areas previously closed to surfclam fishing that are 
to be opened during the year and areas likely to be closed to fishing 
during the year.
    (2) Public review. Based on the recommendation of the MAFMC, the 
Regional Administrator shall publish proposed surfclam and ocean quahog 
quotas in the Federal Register. Comments on the proposed annual quotas 
may be submitted to the Regional Administrator within 30 days after 
publication. The Assistant Administrator shall consider all comments, 
determine the appropriate annual quotas, and publish the annual quotas 
in the Federal Register on or about December 1 of each year. The quota 
shall be set at that amount that is most consistent with the objectives 
of the Atlantic Surfclam and Ocean Quahog FMP. The Regional 
Administrator may set quotas at quantities different from the MAFMC's 
recommendations only if he/she can demonstrate that the MAFMC's 
recommendations violate the national standards of the Magnuson Act and 
the objectives of the Atlantic Surfclam and Ocean Quahog FMP and other 
applicable law.
    (b) Interim quota modifications. Based upon information presented 
in the quota reports described in paragraph (a)(1), the MAFMC may 
recommend to the Regional Administrator a modification to the annual 
quotas that have been specified for a 3-year period and any estimate of 
DAH or DAP made in conjunction with such specifications within the 
ranges specified in paragraph (a)(1) of this section. Based upon the 
Council's recommendation, the Regional Administrator may propose 
surfclam and or ocean quahog quotas that differ from the annual quotas 
specified for the current 3-year period. Such modification shall be in 
effect for a period of 3 years from the year in which it is first 
implemented unless further modified. Any interim modification shall 
follow the same procedures for establishing the annual quotas that are 
specified for a 3-year period.
    (c) The previous year's annual quotas for surfclams and ocean 
quahogs and three-year specifications will remain effective unless 
revised pursuant to this section. NMFS will issue notification in the 
Federal Register if the previous year's specifications will not be 
changed.
    3. In Sec.  648.77, paragraph (a)(1) is revised to read as follows:


Sec.  648.77  Framework adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council must provide the public with advance notice of 
the availability of the recommendation(s), appropriate justification(s) 
and economic and biological analyses, and the opportunity to comment on 
the proposed adjustment(s) at the first meeting, and prior to and at 
the second Council meeting. The Council's recommendations on 
adjustments or additions to management measures must come from one or 
more of the following categories: The overfishing definition (both the 
threshold and target levels), description and identification of EFH 
(and fishing gear management measures that impact EFH), habitat areas 
of particular concern, set aside quota for scientific research, vessel 
tracking system, optimum yield range, and suspension or adjustment of 
the surfclam minimum size limit.
* * * * *
[FR Doc. 03-24250 Filed 9-24-03; 8:45 am]
BILLING CODE 3510-22-S