[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Rules and Regulations]
[Pages 2023-2026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-626]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 041108311-5001-02; I.D. 110204B]
RIN 0648-AR52


Fisheries of the Northeastern United States; Final 2005, 2006, 
and 2007 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.

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SUMMARY: NMFS is required to specify annual catch quotas for the 
Atlantic surfclam and ocean quahog fisheries. NMFS issues this rule to 
set final 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[deg]50' N. lat. for the 2005, 2006, and 2007 fishing years.

DATES: Effective January 1, 2005.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA), and the Essential Fish Habitat Assessment, 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, and public comments and responses, and the summary of impacts and 
alternatives contained in the Classification section of the preamble of 
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.noaa.gov/nero/regs/com.html.

FOR FURTHER INFORMATION CONTACT: Brian R. Hooker, Fishery Policy 
Analyst, 978-281-9220.

SUPPLEMENTARY INFORMATION: The Fishery Management Plan for the Atlantic 
Surfclam and Ocean Quahog Fisheries (FMP) requires that NMFS, in 
consultation with the Mid-Atlantic

[[Page 2024]]

Fishery Management Council (Council), specify annual quotas for 
surfclams and ocean quahogs 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 (63 FR 27481, May 19, 1998), added Maine 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 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 to 35,240 hL). As specified in Amendment 10, 
the Maine mahogany ocean quahog quota is allocated separately from the 
quota specified for the ocean quahog fishery. Regulations implementing 
Amendment 13 to the FMP (68 FR 69970, December 16, 2003) established 
the ability to set multi-year quotas. An evaluation, in the form of an 
annual quota recommendation paper, will be conducted by the Council 
every year to determine if the multi-year quota specifications remains 
appropriate. The fishing quotas must be in compliance with overfishing 
definitions for each species.
    Detailed background information regarding the development of these 
quotas was provided in the preamble to the proposed rule (69 FR 67528, 
November 18, 2004), and is not repeated here. The comment period for 
the proposed rule ended December 20, 2004.
    NMFS is also implementing clarifications to the Atlantic surfclam 
and ocean quahog regulations through this final rule. Amendments to 
Sec. Sec.  648.70(a), and 648.71(a) and (a)(2), remove references to 
the dates on which the initial allocation of surfclams and ocean 
quahogs shall be determined, and remove references to the dates on 
which the proposed and final rules for the annual specifications must 
be specified and published in the Federal Register by the Regional 
Administrator. References to these dates are not necessary in 
regulatory text. Additionally, a latitudinal coordinate identifying the 
``Boston Foul Ground'' in Sec.  648.73(a)(1) is corrected through re-
insertion of a digit that was inadvertently dropped in a previous 
rulemaking. These administrative revisions are minor, non-substantive 
changes and do not change operating practices in the fishery.
    The final quotas for the 2005-2007 Atlantic surfclam, ocean quahog, 
and Maine mahogany ocean quahog fisheries, which are unchanged from the 
proposed rule, are shown in the table below. The status quo level of 
2004 for Maine ocean quahog and surfclams is maintained for 2005-2007, 
but the ocean quahog quota is increased incrementally by 20 percent 
over the 3-year period.

             FINAL 2005-2007 SURFCLAM/OCEAN QUAHOG QUOTAS\1\
------------------------------------------------------------------------
                                    2005          2006          2007
                              ------------------------------------------
                                 bu      hL     bu     hL     bu     hL
------------------------------------------------------------------------
\2\Surfclams                   3.400   1.810  3.400  1.810  3.400  1.810
------------------------------------------------------------------------
\2\Ocean Quahogs               5.333   2.840  5.666  3.016  6.000  3.194
------------------------------------------------------------------------
\3\Maine Ocean Quahogs         100,00  35,24  100,0  35,24  100,0  35,24
                                0       0      00     0      00     0
------------------------------------------------------------------------
\1\Numerical values in table are in millions except for Maine ocean
  quahogs
\2\1 bushel = 1.88 cubic ft = 53.24 liters
\3\1 bushel = 1.2445 cubic ft = 35.24 liters

Comments and Responses

    NOAA Fisheries received one comment on the proposed rule during the 
comment period. The commenter stated the following concerns: (1) There 
is no rationale for an increase in surfclam quota; and (2) the proposed 
rule would allow overfishing to continue.
    This final rule would not increase the quota for surfclams. The 
status quo (which is the maximum allowed under the FMP) would remain in 
effect for the 3-year quota period. Based on the most recent stock 
assessments, neither the Atlantic surfclam nor the ocean quahog 
resource is overfished, nor is overfishing occurring. The recommended 
quotas are expected to allow sustainable fishing to continue 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 final 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 annual quotas for the 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, 2005, regardless of the publication of the annual 
quota, as tags for the 2005 fishing year have already been issued by 
the vendor pursuant to Sec.  648.75(b). 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 2005 fishing year on January 1, 2005. Further, and of 
more immediate concern is that several banks currently hold a total 17 
surfclam and 12 ocean quahog allocations. These allocations are held by 
the banks as security for loans made by the banks to fisherman 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 temporarily the cage 
tags associated with the allocation back to the borrower. This transfer 
enables the borrower to begin fishing at the

[[Page 2025]]

beginning of the fishing year in order to generate income with which to 
discharge the loan. 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 2005-2007 surfclam, ocean quahog, and Maine 
ocean quahog quotas.
    A description of the reasons why this action is being taken by the 
Agency and the objectives of this final rule are continued 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.

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 of the proposed and final rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

    No significant issues, including ones relating to the IRFA or the 
economic effects of the proposed rule, were raised in the public 
comments. One comment was received and has been addressed in the 
preamble to the final rule.

Description and Estimate of Number of Small Entities to Which this Rule 
Will Apply

    This action will impact approximately 138 small entities, 82 
Atlantic surfclam allocation owners, and 56 ocean quahog allocation 
owners. In 2003, 50 vessels reported harvesting surfclams or ocean 
quahogs from Federal waters under the ITQ system. Thirty-five vessels 
in 2003 fished under Federal limited access Maine ocean quahog permits. 
All of these businesses are considered small entities under the 
standards described by the Small Business Administration because they 
have annual returns that do not exceed $3.5 million annually.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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

Description of Minimization of Economic Impacts on Small Entities

    Economic impacts on small entities have been minimized within the 
constraints of the FMP. Specifically, the commercial quotas must meet 
the conservation objectives of the FMP, implemented in 50 CFR part 648 
under the authority of the Magnuson-Stevens Act. This final rule 
establishes harvest levels for Atlantic surfclams that are the maximum 
allowable under the FMP for 2005-2007. Harvest levels for ocean quahogs 
will be the maximum allowable under the FMP by 2007.
    The Council identified three surfclam quota alternatives in 
addition to the ``no-action'' alternative. The preferred alternative of 
3.400 m bu (1.81 m hL) for 2005-2007, an alternative with a 45.6-
percent decrease to 1.85 m bu (0.98 m hL), and an alternative with a 
4.4-percent decrease to 3.25 m bu (1.73 m hL) were analyzed. The 
minimum allowable quota specified in the current OY range is 1.850 m bu 
(0.99 m hL) of surfclams. A 45.6-percent reduction in quota of would 
have a substantially negative impact on overall ex-vessel revenues 
equaling a $215,363-decrease per allocation. Adoption of the 4.4-
percent decrease in quota would represent a $20,781-reduction per 
allocation. However, given the current biological status of the 
surfclam resource, the Council does not believe that a quota reduction 
is warranted at this time. In summation, the Council determined that 
the 45.6-percent reduction would significantly negatively impact 
revenues and a smaller 4.4-percent reduction is not warranted as the 
stock is not overfished and overfishing is not occurring. The preferred 
alternative is the 2004 status quo, thus it will have no impact on 
revenues.
    The Council analyzed four ocean quahog quota alternatives in 
addition to the ``no-action'' alternative. The preferred alternative of 
a 20-percent increase over 3 years, an alternative with a 20-percent 
(1.0 m bu (0.53 m hL)) decrease, an alternative with the 2004 status 
quo of 5.0 m bushels (2.66 m hL), and an alternative with a 20-percent 
(1.0 m bu (0.53 m hL)) increase in 1 year were analyzed. The minimum 
allowable quota specified in the current OY range is 4.0 m bu (2.13 m 
hL) of ocean quahogs. Adoption of a 4.0 m bu (2.13 m hL) quota would 
represent a 20-percent decrease from the current quota. This 
alternative would take the most conservative approach to managing the 
fishery that is currently available to the Council, but would result in 
the fewest economic benefits available to the ocean quahog fishery. 
Given the current biological status of the quahog resource, the Council 
concluded that a quota reduction is not warranted. Adoption of the 2004 
status quo quota will have no impact on revenues for small entities. A 
20-percent increase in quota in the first year would move directly to 
the maximum quota allowed in the FMP and, if fully utilized, would 
equate to a $102,180-increase per allocation. However, the Council was 
concerned that the industry does not currently have a market available 
to absorb a large increase in landings that quickly. Additionally, due 
to uncertainty in the recent stock assessment, the Council recommended 
a gradual increase, with annual reviews to confirm its appropriateness. 
Although two alternatives would allow for increased revenues, the 
Council recommended a gradual 20-percent increase over 3 years, rather 
than the 20-percent increase in the first year.
    The quota for Maine mahogany ocean quahogs is specified at the 
maximum allowable 100,000 Maine bu (35,240 hL). The FMP specifies that 
adjustments to the quota above 100,000 Maine bu (35,240 hL) 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 Maine bushels (35,240 hL), including 50,000 Maine bu and 92,500 
Maine bu (17,620 and 32,596 hL). Any quota below the 1999 landing level 
of 93,938 Maine bu (33,104 hL) would have resulted in a decrease in 
revenues to individual vessels.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforceement 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

[[Page 2026]]

or group of rules. As part of this rulemaking process, a small entity 
compliance guide was prepared. Copies of the guide will be sent to all 
holders of commercial Federal Atlantic surfclam, ocean quahog, and the 
limited access Maine 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).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeing requirements.

    Dated: January 6, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.70, paragraph (a)(1) is revised to read as follows:


Sec.  648.70  Annual individual allocations.

    (a) * * *
    (1) Each fishing year, the Regional Administrator shall determine 
the initial allocation of surfclams and ocean quahogs for the next 
fishing year for each allocation holder owning an allocation pursuant 
to paragraph (a)(2) of this section. For each species, the initial 
allocation for the next fishing year is calculated by multiplying the 
allocation percentage owned by each allocation owner as of the last day 
of the previous fishing year in which allocation owners are permitted 
to permanently transfer allocation percentage pursuant to paragraph (b) 
of this section (i.e., October 15 of every year), by the quota 
specified by the Regional Administrator pursuant to Sec.  648.71. The 
total number of bushels of allocation shall be divided by 32 to 
determine the appropriate number of cage tags to be issued or acquired 
under Sec.  648.75. Amounts of allocation 0.5 or smaller created by 
this division shall be rounded downward to the nearest whole number, 
and amounts of allocation greater than 0.5 created by this division 
shall be rounded upward to the nearest whole number, so that 
allocations are specified in whole cages. These allocations shall be 
made in the form of an allocation permit specifying the allocation 
percentage and the allocation in bushels and cage tags for each 
species. An allocation permit is only valid for the entity for which it 
is issued. Such permits shall be issued on or before December 15, to 
allow allocation owners to purchase cage tags from a vendor specified 
by the Regional Administrator pursuant to Sec.  648.75(b).
* * * * *

0
3. In Sec.  648.71, paragraphs (a) introductory text and (a)(2) are 
revised 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 3-year period by the 
Regional Administrator. 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 in 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 m bu (98.5 to 181 m L) per 
year. The amount of ocean quahogs available for harvest annually must 
be specified within the range of 4 to 6 m bu (213 to 319.4 m L).
* * * * *
    (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 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-Stevens Act and the objectives of 
the Atlantic Surfclam and Ocean Quahog FMP and other applicable law.

0
4. In Sec.  648.73, paragraph (a)(1) is revised as follows:


Sec.  648.73  Closed areas.

    (a) * * *
    (1) Boston Foul Ground. The waste disposal site known as the 
``Boston Foul Ground'' and located at 42[deg]25'36'' N. lat., 
70[deg]35'00'' W. long., with a radius of 1 nautical mile in every 
direction from that point.
* * * * *
[FR Doc. 05-626 Filed 1-11-05; 8:45 am]
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