[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Rules and Regulations]
[Pages 81142-81144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32484]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 101013504-0610-02]
RIN 0648-XY27


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Surfclam and Ocean Quahog Fishery; Final 2011-2013 Fishing Quotas for 
Atlantic Surfclam and Ocean Quahog

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

ACTION: Final rule.

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SUMMARY: NMFS implements final quotas for the Atlantic surfclam and 
ocean quahog fisheries for 2011, 2012, and 2013. Regulations governing 
these fisheries require NMFS to publish the final quota specifications 
for the 2011-2013 fishing years. The intent of this action is to 
establish allowable harvest levels of Atlantic surfclams and ocean 
quahogs from the Exclusive Economic Zone to prevent overfishing and to 
allow harvesting of optimum yield (OY).

DATES: Effective January 1, 2011, to December 31, 2013.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review (RIR), and Initial Regulatory 
Flexibility Analysis (IRFA) are available from Christopher Moore, 
Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 
800 N. State St., Dover, DE 19901. A copy of the EA/RIR/IRFA is 
accessible via the Internet at http://www.nero.noaa.gov/nero/regs/com.html.
    The Final Regulatory Flexibility Analysis (FRFA) consists of the 
IRFA and the summary of impacts and alternatives contained in the 
Classification section of the preamble to this final rule. Copies of 
the small entity compliance guide are available from Patricia A. 
Kurkul, Regional Administrator, NMFS Northeast Regional Office, 55 
Great Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Anna Macan, Fishery Management 
Specialist, 978-281-9165.

SUPPLEMENTARY INFORMATION: The fishery management plan (FMP) for 
Atlantic surfclams and ocean quahogs requires that NMFS, in 
consultation with the Mid-Atlantic Fishery Management Council 
(Council), specify quotas for surfclam and ocean quahog for a 3-year 
period, with an annual review, from a range that represents the 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 Maine 
mahogany quahogs) to the management unit, and provided for a small 
artisanal fishery for ocean quahogs in the waters north of 43[deg]50' 
N. lat., with an annual quota 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, is conducted by the Council every year to 
determine if the multi-year quota specifications remain appropriate. 
The fishing quotas must be in compliance with overfishing definitions 
for each species. In recommending these quotas, the Council considered 
the most recent stock assessments, data reported by harvesters and 
processors, and other relevant information concerning exploitable 
biomass and spawning biomass, fishing mortality rates, stock 
recruitment, projected fishing effort and catches, and areas closed to 
fishing.
    In June 2010, the Council voted to recommend maintaining the 2010 
quota levels of 5.333 million bu (284 million L) for the ocean quahog 
fishery, 3.400 million bu (181 million L) for the Atlantic surfclam 
fishery, and 100,000 Maine bu (35,240 hL) for the Maine ocean quahog 
fishery for 2011-2013. The basis for the Council's quota 
recommendations was provided in the proposed rule published on October 
25, 2010 (75 FR 65442), and is not repeated here.
    With this rule, NMFS approves and implements the quotas proposed by 
the Council. The final quotas for the 2011-2013 Atlantic surfclam and 
ocean quahog fishery are shown in the table below. The Atlantic 
surfclam and ocean quahog quotas are specified in ``industry'' bu of 
53.24 L per bu, while the Maine ocean quahog quota is specified in 
``Maine'' bu of 35.24 L per bu. Because Maine ocean quahogs are the 
same species as ocean quahogs, both fisheries are assessed under the 
same ocean quahog overfishing definition. When the two quota amounts 
(ocean quahog and Maine ocean quahog) are added, the total allowable 
harvest is still lower than the level that would result in overfishing 
for the entire stock.

[[Page 81143]]



                          FINAL 2011-2013 ATLANTIC SURFCLAM AND OCEAN QUAHOG \1\ QUOTAS
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                                              2011                      2012                      2013
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                                         bu           hL           bu           hL           bu           hL
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Surfclams \2\.....................        3.400        1.810        3.400        1.810        3.400        1.810
Ocean Quahogs \2\.................        5.333        2.840        5.333        2.840        5.333        2.840
Maine Ocean Quahogs \3\...........      100,000       35,240      100,000       35,240      100,000       35,240
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\1\ Numerical values are in millions except for Maine ocean quahogs.
\2\ 1 bu = 1.88 cubic ft. = 53.24 liters.
\3\ 1 bu = 1.2445 cubic ft. = 35.24 liters.

Comments and Responses

    NMFS published proposed specifications on October 25, 2010, with a 
comment period that ended November 24, 2010. During the comment period 
on the proposed rule, NMFS received four comments. Three comments were 
received from commercial Atlantic surfclam and ocean quahog industry 
participants, and one comment was received from a private citizen.
    Comment #1: One commenter proposed significant reductions to all 
quotas in order to end overfishing, but offered no scientific basis for 
this suggestion, and the comment does not speak to Atlantic surfclams 
or ocean quahogs specifically.
    Response: Neither ocean quahogs nor Atlantic surfclam are 
overfished nor are subject to overfishing; therefore, there is no 
scientific basis for reducing the quotas as suggested by this 
commenter.
    Comment #2: Three commenters suggested that the ocean quahog 
allocation should be reduced 25 percent to 4.0 million bushels.
    Response: This request is based, in part, on concern over the 
health of the resource; two commenters raised a concern that the stock 
biomass may be less than half of the virgin biomass in the Virginia, 
Delmarva, and New Jersey regions, and that making determinations about 
the health of the stock based on the whole stock, rather than just the 
exploitable component of the stock, is a violation of the National 
Standards. However, as noted above, the most recent stock assessment 
(completed in 2009) concluded that ocean quahogs were not overfished 
and were not subject to overfishing. The stock assessment reviewed all 
available information on the ocean quahog stock. The decision to base 
the status determination and the quota on the entire stock rather than 
just the exploitable biomass is consistent with the best available 
scientific advice.
    Comment #3: Two commenters also raised concerns with the economic 
implications of setting a quota higher than recent landings. The 
concern appears to be that, because surplus quota is allocated to the 
fishery, this could reduce the value of the fishing quota allocated to 
individuals, who are left with less demand for quota to lease.
    Response: The Council has the discretion to act on this issue 
pursuant to the Magnuson-Stevens Act and has discussed this issue 
during the development of proposed specifications for the clam fishery. 
The Council's proposed quota of 5.33 million bushels is consistent with 
the best available scientific information on the stock, and the 
management approach selected by the Council remains consistent with the 
National Standards of the Magnuson-Stevens Act.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), the NMFS Assistant Administrator 
has determined that this final rule is consistent with the FMP, other 
provisions of the MSA, and other applicable law.
    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA, finds good cause, 
under 5 U.S.C. 533(d)(3), to waive the 30-day delay in effectiveness 
period for the implementation of the 2011-2013 surfclam, ocean quahog, 
and Maine ocean quahog quotas. 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. 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, 2011, regardless of the publication of the annual quota, as 
tags for the 2011 fishing year have already been issued by the vendor 
pursuant to Sec.  648.75(b). ITQ allocations are often transferred 
either permanently or temporarily to meet changing economic 
circumstances in the fishery beginning immediately upon the 
commencement of these fisheries. Without a quota in effect, the 
industry does not have the ability to make a transfer of part or all of 
an allocation either permanently or temporarily. The inability of the 
industry to make such transfers effective would preclude the intended 
recipients of such transfers from fishing. Accordingly, a delay in the 
effectiveness of this rule would be contrary to the rule's intent to 
maintain current quota levels that have the full support of the fishing 
industry and facilitate the transfer of quotas requested by the 
industry.
    This rule could not be published sooner because the Council did not 
provide its quota specification until September of 2010. As a result of 
that timing, in order for NMFS to provide a proposed rulemaking stage 
with adequate opportunity for comment, it is necessary to waive the 30-
day delay in effectiveness, as it would compromise the start of the 
fishing year and thereby undermine the intent of the rule. The 
inability to transfer quota would be contrary to the public interest 
because it would preclude the intended recipients of such transfers 
from fishing, thereby resulting in a negative economic impact on the 
industry. Additionally, a delay in quota transfers would result in 
fewer days available to fish, and a vessel operator may feel obligated 
to fish during periods when they may otherwise choose not to do so. 
Given the increase in foul weather and hazardous seas during certain 
months, a vessel's ability to operate safely at sea could be 
compromised.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has prepared a FRFA in support of these specifications. The FRFA 
incorporates the IRFA, a summary of the significant issues raised by 
the public comments in response to the IRFA, NMFS's responses to those 
comments, and a summary of the analyses completed to support the 
action. A copy of the IRFA, RIR, and EA are available upon request (see 
ADDRESSES). A summary of the IRFA was published in the proposed rule 
for this action and is not repeated here. A

[[Page 81144]]

description of why this action was considered, the objectives of, and 
the legal basis for, this rule is contained in the preamble to the 
proposed rule and this final rule and is not repeated here.

A Summary of the Significant Issues Raised by the Public in Response to 
the IRFA, a Summary of the Agency's Assessment of Such Issues, and a 
Statement of Any Changes Made in the Proposed Rule as a Result of Such 
Comments

    Four public comments were submitted on the proposed rule. Although 
none of the comments were made in direct response to the IRFA, two 
commenters did raise concerns about the economic impacts associated 
with the quota levels implemented in this final rule. NMFS has 
responded to these comments in the Comments and Responses section of 
this preamble. No changes have been made in this final rule as a result 
of the comments provided on the proposed rule.

Description and Estimate of the Number of Small Entities to Which This 
Rule Would Apply

    The Small Business Administration (SBA) defines a small commercial 
fishing entity as a firm with gross annual receipts not exceeding $4.0 
million. In 2009, a total of 43 vessels reported harvesting surfclams 
and/or ocean quahogs from Federal waters under the IFQ system. In 
addition, 19 vessels participated in the limited access Maine ocean 
quahog fishery, for a total of 62 participants in the 2009 fisheries. 
Average 2009 gross income from surfclam IFQ trips was $833,333 per 
vessel, and from ocean quahog IFQ trips was $1,533,333 per vessel. The 
Maine ocean quahog fishery reported an average value of $105,263 per 
vessel. Each vessel in this analysis is treated as a single entity for 
purposes of size determination and impact assessment. All 62 commercial 
fishing entities fall below the SBA size threshold for small commercial 
fishing entities.
    In addition to the active vessels that participate in the fishery 
there are 45 ocean quahog quota IFQ allocation holders, 57 surfclam 
allocation holders, and 40 Federal limited access Maine mahogany quahog 
permit holders. An allocation holder may choose to fish or lease his or 
her quota allocation.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements. This final rule does not duplicate, 
overlap, or conflict with other Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes

    The final quotas for 2011-2013 reflect the same quota levels set 
for 2008-2010. Therefore, it is not expected that there will be any 
different economic impacts beyond status quo resulting from the final 
quota level. Leaving the ocean quahog quota at the harvest level of 
5.333 million bu (284 million L) is not expected to constrain the 
fishery. In fact, actual ocean quahog landings for 2008 and 2009 did 
not exceed 65 percent of the available quota. The total 2010 harvest is 
expected to be similar to that of recent years (as of October 31, 2010, 
only 53.6 percent of the quota had been harvested). In comparison, 56.5 
percent of the quota had been harvested as of October 31, 2009.
    The surfclam quota is to be set to the maximum allowed under the 
FMP. In contrast to the ocean quahog harvest, the surfclam fishery has 
harvested over 80 percent of the available quota each year since 2005. 
The Maine ocean quahog quota is to be also set at the maximum allowed 
under the FMP. The Maine ocean quahog quota is often fully harvested on 
an annual basis. It is anticipated that, by maintaining the status quo 
quota level for the next 3 years, the fishing industry will benefit 
from the stability of product demand from the seafood processors and 
being able to predict future fishery performance based on past 
performance from the last 3 years.

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 actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. All ITQ 
allocation holders and fishermen in the Atlantic surfclam and ocean 
quahog fishery that would be impacted by this final rulemaking are 
considered to be small entities. Copies of this final rule are 
available from the Northeast Regional Office, and the guide, i.e., 
permit holder letter, 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. The guide and this final rule 
will be available upon request from the Regional Administrator (see 
ADDRESSES).

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

    Dated: December 21, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-32484 Filed 12-23-10; 8:45 am]
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