[Federal Register Volume 68, Number 245 (Monday, December 22, 2003)]
[Rules and Regulations]
[Pages 71033-71036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31487]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 031015257-3308-02 ; I.D. 101603A]
RIN 0648-AQ79


Fisheries of the Northeastern United States; 2004 Fishing Quotas 
for Atlantic Surfclams, Ocean Quahogs, and Maine Mahogany Ocean Quahogs

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

ACTION: Final Rule - 2004 fishing quotas for Atlantic surfclams, ocean 
quahogs, and Maine mahogany ocean quahogs.

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SUMMARY: NMFS is required pursuant to 50 CFR 648.71 to specify annual 
catch quotas for the Atlantic surfclam and ocean quahog fisheries. In 
order to meet this regulatory requirement, NMFS issues this rule to set 
final quotas for the Atlantic surfclam, ocean quahog, and Maine 
mahogany ocean quahog fisheries for 2004. These regulations specify 
allowable harvest levels of Atlantic surfclams and ocean quahogs from 
the Exclusive Economic Zone and an allowable harvest level of Maine 
mahogany ocean quahogs from Atlantic waters north of 43 50' N. lat. in 
2004.

DATES: Effective from January 1, 2004, through December 31, 2004.

ADDRESSES: Copies of the surfclam and ocean quahog quota specifications 
document for 2004, including the Environmental Assessment, Regulatory 
Impact Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), 
and the Essential Fish Habitat Assessment, and other supporting 
documents, are available from Daniel Furlong, Executive Director, Mid-
Atlantic Fishery Management Council, Room 2115, Federal Building, 300 
South New Street, Dover, DE 19904-6790. The Final Regulatory 
Flexibility Analysis (FRFA) consists of the IRFA, public comments and 
responses contained in this final rule, and the summary of impacts and 
alternatives contained in this final rule. Copies of the small entity 
compliance guide are available from Patricia A. Kurkul, Regional 
Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, 
Gloucester, MA 01930-2298. A copy of the EA/RIR/IRFA is accessible via 
the Internet at http:/www.nero.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: Susan W. Chinn, Fishery Management 
Specialist, 978-281-9218, [email protected].

SUPPLEMENTARY INFORMATION: The Fishery Management Plan for the Atlantic 
Surfclam and Ocean Quahog Fisheries (FMP) requires that NMFS, in 
consultation with the Mid-Atlantic Fishery Management Council 
(Council), specify quotas for surfclams and ocean quahogs on an annual 
basis from a range that represents the optimum yield (OY) for each 
fishery. It is the policy of the Council that the levels selected allow 
sustainable fishing to continue at that level for at least 10 years for 
surfclams and 30 years for ocean quahogs. In addition to this 
constraint, the Council policy also considers the economic impacts of 
the quotas. Regulations implementing Amendment 10 to the FMP, published 
on May 19, 1998 (63 FR 27481), added Maine mahogany ocean quahogs 
(locally known as mahogany quahogs) to the management unit and provided 
that a small artisanal fishery for ocean quahogs in the waters north of 
43[deg] 50' N. lat. has an annual quota with

[[Page 71034]]

an initial amount of 100,000 Maine bu (35,240 hectoliters (hL)) within 
a range of 17,000 to 100,000 Maine bu (5,991 hL to 35,240 hL). As 
specified in Amendment 10, the Maine mahogany ocean quahog quota is in 
addition to the quota specified for the ocean quahog fishery.
    Detailed background information regarding the development of these 
quotas was provided in the preamble to the proposed rule published at 
68 FR 60324, October 22, 2003, and is not repeated here. The comment 
period for that rule ended on November 21, 2003. One comment was 
received during the comment period.
    The final quotas for the 2004 Atlantic surfclam, ocean quahog, and 
Maine mahogany ocean quahog fisheries, which are unchanged from those 
in the proposed rule, are shown in the table below. The status quo 
level of 2003 for the surf clam fishery will be increased by 4.6 
percent (from 3.25 to 3.4 million bu) and the ocean quahog quota will 
be increased by 11.1 percent (from 4.5 to 5.0 million bu). Finally, 
this rule makes no changes to the Marine ocean quahog quota from the 
2003 level of 100,000 Maine bushels.

                 FINAL 2004 SURFCLAM/OCEAN QUAHOG QUOTAS
------------------------------------------------------------------------
                                                 2004 final   2004 final
                    Fishery                     quotas (bu)  quotas (hL)
------------------------------------------------------------------------
\1\Surfclam...................................    3,400,000    1,810,000
\1\Ocean quahog...............................    5,000,000    2,662,000
\2\Maine mahogany ocean quahog................      100,000       35,240
------------------------------------------------------------------------
\1\ 1 bushel = 1.88 cubic ft. = 53.24 liters
\2\ 1 bushel = 1.2445 cubic ft. = 35.24 liters

Comments and Responses

    The deadline for receiving comments on the proposed rule was 
November 21, 2003. One comment was received on the proposed rule during 
the comment period.
    Comment: The commenter expressed concern that the determination of 
OYs is biased by industry and politics and that they are set too high; 
asserted that NMFS fails to protect the stocks; and voiced general 
support for establishing marine protected areas and reducing any quotas 
by at least 50 percent. The commenter also objected to NMFS not 
accepting comments via e-mail on this action.
    Response: This rule implements measures designed to provide for 
improved utilization of the Federal commercial surfclam and ocean 
quahog resource, and to improve efficiency of this fishery. The OYs 
used to determine the quotas for each fishery are based on the best 
scientific information available, and have been vetted through the 
SARC, NOAA's Northeast Fisheries Science Center (Center), and peer 
reviewers, without dispute. None of the stocks are overfished, and 
overfishing is not occurring. The areas most affected by the surfclam 
and ocean quahog industry operations are high-energy, sandy areas that 
are only temporarily impacted by fishing operations under this FMP; as 
such, there is no immediate need for MPAs as a result of this fishery. 
Finally, the recommended quotas will allow sustainable fishing to 
continue at these quota levels for at least 10 years for surfclams and 
30 years for ocean quahogs.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A delay in the effective date of this rule would cause a disruption 
in the ordinary commerce of the surfclam and ocean quahog fisheries. 
Individual Transferable Quota (ITQ) shareholders each receive a portion 
of the overall quota for these two species. An allocation holder 
receives an amount of cage tags equivalent to his/her share of the 
overall quota. Fishing for surfclams and ocean quahogs begins on 
January 1, regardless of the publication of the annual quota. 
Historically, allocations have been transferred either permanently or 
temporarily to meet changing economic circumstances in the fishery 
right from the commencement of these fisheries. For example, vessel 
owners who enter into a supply contract with a processor may experience 
vessel breakdowns that thwart performance of their contractual 
obligations. In this situation, it is imperative that the vessel owner 
have the ability to request that NMFS transfer temporarily part of his/
her allocation to another harvester who is willing to fulfill the terms 
of the supply contract in time for the start of the 2004 fishing year. 
Further, and of more immediate concern is that five banks currently 
hold twenty-nine allocations between the surfclam and ocean quahog 
fisheries. These allocations are held by the banks as security for 
loans made by the banks to fishermen in these two fisheries. This 
entails the permanent transfer of the individual allocation to the bank 
as collateral for the pendency of the loan. The banks request NMFS on 
an annual basis to transfer the cage tags associated with the 
allocation back to the borrower. This transaction is characterized as a 
temporary transfer of the allocation pursuant to the regulations. This 
temporary transfer of allocation enables the borrower to begin fishing 
at the beginning of the fishing year in order to generate income with 
which to discharge the loan. NMFS has received several such requests 
from the banks holding allocations for the 2004 fishing year. More 
requests are expected in the near future. Without a quota in effect, 
NMFS cannot make a transfer of part or the entirety of an allocation 
either permanently or temporarily. This inability on the part of NMFS 
to make such transfers effective would preclude the intended recipients 
of such transfers from fishing, thereby engendering a negative economic 
impact on the surfclam and ocean quahog fisheries. Therefore, there is 
good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed 
effectiveness period for the implementation of the 2004 surfclam, ocean 
quahog, and Maine mahogany quahog quotas.
    A description of the reasons why this action is being taken by the 
Agency and the objectives of this final rule are explained in the 
preambles of the proposed rule and this final rule. This action does 
not contain any collection-of-information, reporting, or recordkeeping 
requirements. It does not duplicate, overlap, or conflict with any 
other Federal rules. This action is taken under the authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and regulations at 50 CFR part 648. There are no 
compliance costs associated with this final rule.
    Included in this final rule is the Final Regulatory Flexibility 
Analysis (FRFA) prepared pursuant to 5 U.S.C. 604(a). The FRFA 
incorporates the IRFA, the comments and responses to the proposed rule, 
and the economic analyses completed in support of this action. A copy 
of the IRFA is available from the Council (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule are explained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    One comment was received during the comment period on the proposed 
rule, although it did not pertain to the

[[Page 71035]]

economic impacts of this rule. No changes to the proposed rule were 
required to be made as a result of public comments. For a summary of 
the comment received, refer to the section above titled ``Comments and 
Responses.''

Description and Estimate of Number of Small Entities to which Rule Will 
Apply

    A description and estimate of the number of small entities to which 
the rule will apply is provided in the IRFA and IRFA summary contained 
in the Classification section of the proposed rule and is only 
summarized here.
    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. This rule 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 fishery. In 2002, a 
total of 54 vessels reported harvesting surfclams or ocean quahogs from 
Federal waters under an Individual Transferable Quota (ITQ) system. 
There were 35 vessels in 2002 that fished under the federal limited 
access Maine mahogany quahog permit for Maine ocean quahogs.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This rule would not impose any new reporting, recordkeeping, or 
other compliance requirements. Therefore, the costs of compliance would 
remain unchanged.

Description of the Steps Taken to Minimize Economic Impact on Small 
Entities

    Economic impacts on small entities have been minimized within the 
constraints of the FMP. Specification of commercial quotas is 
constrained by the conservation objectives of the FMP, and implemented 
at 50 CFR part 648 under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). It is not 
possible to further mitigate economic impacts on small entities because 
the Council selected the alternative with the most positive economic 
impacts relative to the other alternatives determined to achieve the 
biological objectives.
    This rule establishes a 4.6-percent increase in the surfclam quota, 
an 11.1-percent increase in the ocean quahog quota, and no change in 
the 2004 quota for Maine mahogany ocean quahogs from their 2003 quotas. 
Since 2002 harvest levels of 3.133 and 3.871 million bu (1.668 and 
2.061 million hL) for surfclams and ocean quahogs, respectively, were 
below the 2004 proposed quotas, NMFS and the Council believe that the 
final 2004 quotas may yield a surplus quota available to vessels 
participating in all these fisheries. This is especially likely to 
occur in the ocean quahog fishery. In the case of a surplus quota, 
vessels would not be constrained from harvesting additional product, 
thus allowing them to increase their revenues.
    The Council identified four surfclam quota alternatives in addition 
to the selected quota of 3.400 million bu (1.810 million hL), including 
1.850, 3.135, 3.250, and 3.325 million bu (0.985, 1.669, 1.730 and 
1.771 million hL). The Council and NMFS determined that the only 
alternative that would significantly negatively impact revenues to 
vessels is the 1.850-million bu (0.985-million hL) alternative for 
surfclams. The 3.135-million bu (1.669-million hL) and status quo 
alternative would be restrictive and have a slight to moderate impact 
on revenues. The 3.325-million bu (1.771-million hL) and 3.400 million 
bu (1.810 million hL) alternatives would yield increases relative to 
the actual 2002 landings, so increased revenues would be likely to 
occur. The industry believes it can utilize the additional product from 
the 4.6-percent increase in landings and thus have a beneficial impact 
for the Nation.
    The Council analyzed four ocean quahog quota alternatives in 
addition to the selected quota of 5.000-million bu (2.662-million hL), 
including 4.000, 4.250, 4.500, and 6.000 million bu (2.129, 2.263, 
2.396, and 3.195 million hL). Adoption of a 4.000-million bu (2.129-
million hL) or a 4.250-million bu (2.263-million hL) quota would 
represent a 12-percent or a 10-percent decrease, respectively, from the 
2003 quota level and would result in the fewest economic benefits 
available to the ocean quahog fishery. Given the current biological 
status of the quahog resource, the Council does not believe that a 
quota reduction is warranted at this time. Adoption of the 4.500-
million bu (2.396-million hL) quota would most likely have a limited 
impact on small entities, since it results in no change from status 
quo. The 5.000-million bu (2.662-million hL) quota allows for an 11.1-
percent increase in quota from 4.500 million bu (2.396 million hL), and 
a 29-percent increase to the 2002 ocean quahog landings. Adopting the 
maximum allowable quota of 6.000 million bu (3.195 million hL) for 
ocean quahogs would represent a 33-percent increase in allowable 
harvest and a 55-percent increase in landings from 2002, assuming all 
the quota were harvested. However, the industry does not have a market 
available to absorb such a large increase in landings and may not have 
the vessel capacity necessary to harvest a quota this large. Since all 
alternatives, including the selected quota, would yield increases 
relative to the actual 2002 landings, increased revenues would be 
likely to occur, albeit at various percentage differences.
    The quota for Maine mahogany ocean quahogs is specified at a 
maximum 100,000 bu (35,240 hL). The FMP specifies that upward 
adjustments to the quota would require a scientific survey and stock 
assessment of the Maine mahogany ocean quahog resource. However, no 
survey or assessment has been conducted. The Council considered two 
alternative quotas for the Maine mahogany ocean quahog fishery, in 
addition to the preferred alternative of 100,000 bu (35,240 hL), 
including 50,000 bu and 84,700 bu (17,620 and 29,847 hL). Any quota the 
Council would have recommended below the 1999 landing level of 93,938 
Maine bu (33,104 hL) would most likely have resulted in a decrease in 
revenues to individual vessels.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the action a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide (the guide) 
was prepared. Copies of the guide will be sent to all holders of 
commercial Federal Atlantic surfclam and ocean quahog fishery permits. 
The guide will also be available on the Internet at http://www.nero.noaa.gov. Copies of the guide can also be obtained from the 
Regional Administrator (see ADDRESSES).

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


[[Page 71036]]


    Dated: December 16, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 03-31487 Filed 12-19-03; 8:45 am]
BILLING CODE 3510-22-S