[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Proposed Rules]
[Pages 14072-14078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05846]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 150902808-6155-01]
RIN 0648-BF04


Fisheries of the Northeastern United States; Amendment 17 to the 
Atlantic 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 17 to the 
Atlantic Surfclam and Ocean Quahog Fishery Management Plan. Amendment 
17 management measures were developed by the Mid-Atlantic Fishery 
Management Council to: Add cost recovery provisions for the Individual 
Transferable Quota component of the fishery; modify how biological 
reference points are incorporated into the fishery management plan; and 
remove the plan's optimum yield range. These changes are intended to 
make the management plan consistent with requirements of the Magnuson-
Stevens Act, and to improve the management of these fisheries.

DATES: Comments must be received on or before April 15, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-

[[Page 14073]]

NMFS-2015-0057, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0057, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to John K. Bullard, Regional 
Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 
Great Republic Drive, Gloucester, MA 01930. Mark the outside of the 
envelope: ``Comments on Surfclam/Ocean Quahog Amendment 17.''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the commenter may be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Copies of Amendment 17, including the draft Environmental 
Assessment, preliminary Regulatory Impact Review, and economic 
analysis, are available from the Mid-Atlantic Fishery Management 
Council, 800 North State Street, Suite 201, Dover, DE 19901. The EA/RIR 
is also accessible via the Internet at: 
www.greateratlantic.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, 
978-281-9341.

SUPPLEMENTARY INFORMATION:

Background

    This action proposes regulations to implement Amendment 17 to the 
Atlantic Surfclam and Ocean Quahog Fishery Management Plan (FMP). The 
Mid-Atlantic Fishery Management Council developed this amendment to 
establish a program to recover the costs of managing the surfclam and 
ocean quahog individual transferable quota (ITQ) fisheries, as required 
by the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), and to make administrative changes to improve 
the efficiency of the FMP.

Cost Recovery

    The Magnuson-Stevens Act requires each limited access privilege 
program, such as the surfclam/ocean quahog ITQ program, to include 
measures to recover the costs of management, data collection and 
analysis, and enforcement activities involved with the program. This 
action proposes to implement a cost recovery program for the surfclam 
and ocean quahog ITQ fisheries modeled on the Council's existing cost 
recovery program for the Tilefish Individual Fishing Quota (IFQ) 
Program.
    Under the proposed program, any surfclam or ocean quahog ITQ permit 
holder (also referred to in this preamble as ``allocation holders'') 
who has quota share (i.e., receives an initial allocation of cage tags 
each year) would be responsible for paying a fee at the end of the 
year. The fee would be based on the number of the ITQ permit holder's 
cage tags that were ultimately used to land clams that year. In the 
first quarter of each year, the Greater Atlantic Regional Fisheries 
Office (GARFO) would announce the fee percentage and the associated 
per-tag fee for that year, and distribute this announcement widely. 
Although annual fee information would not be published in the Federal 
Register, distribution of the GARFO announcement would include posting 
it on the GARFO Web site and sending it to each ITQ permit holder with 
quota share. The fee percentage would be based on the total recoverable 
costs from the prior fiscal year, adjusted for any prior over- or 
under-collection, divided by the total ex-vessel value of the fishery. 
The resulting percentage cannot exceed the 3-percent statutory maximum. 
Then NMFS would calculate a per-tag fee based on the total number of 
cage tags used to land surfclams or ocean quahogs in the previous year. 
This tag fee would be separate from, and in addition to, the price 
allocation holders currently pay to the tag vendor to obtain the 
physical cage tags each year.
    This process includes an inherent assumption that a similar number 
of cage tags will be used each year. While the fishery has been largely 
stable over time, many factors (e.g., weather events, market demand, 
etc.) may result in the use of more or fewer tags in any given year. As 
a result, we fully anticipate that, in some years, we will collect more 
or less money than is necessary to recover our costs. Refunding over-
collections and issuing supplemental bills to make up for shortfalls 
would increase the cost of administering the fishery, which would 
increase the amount charged in bills the following year. To avoid these 
additional costs, we would apply any over- or under-collection to our 
calculation of recoverable costs and per-tag fees for the following 
year. Our communications with the ITQ permit holders each year will 
make clear that any prior over- or under-collection adjustments will be 
incorporated into the following year's cost-recovery billing.
    The Council produced an analysis as part of Amendment 17 using 2013 
landings and ex-vessel value and assuming a 0.2-percent fee, which 
represents approximately $100,000 of recoverable costs. This analysis 
showed that fees would have been $0.56 per surfclam cage tag and $0.27 
per ocean quahog cage tag. A scenario using the statutory maximum 3 
percent showed the fees could have been as high as $8.36 per surfclam 
tag and $4.10 per ocean quahog tag. However, reaching that 3-percent 
maximum would require recoverable costs to be over $1.5 million, far 
higher than any reasonable estimate for the management costs for these 
fisheries. Annual recoverable costs for the first 5 years of our other 
Greater Atlantic Region IFQ fisheries have averaged approximately 
$21,000 for the Tilefish IFQ Program, and $113,000 for the Limited 
Access General Category Scallop IFQ Program. Based on the management 
requirements of these programs, we anticipate total costs for the 
surfclam and ocean quahog ITQ program would be somewhere between the 
costs of these other programs.
    If allocation holders transfer some or all of their cage tags or 
quota share after the start of the fishing year, they would still be 
liable for any cost recovery fee based on landings of their initial 
allocation. Here is an example of how this might work for an allocation 
holder: Carol has a surfclam ITQ permit with a quota share ratio of 
0.02, meaning she is allocated 2 percent of the total surfclam ITQ 
quota each year. If in a given year the quota is 1 million bushels 
(53.2 million L), Carol's allocation would be 20,000 bushels (1.6 
million L), or 625 cage tags (i.e., 20,000 (1.6 million L) bushels 
divided by 32 bushels (1,700 L) per cage). In the first quarter of the 
year, NMFS announces that the fee will be $0.50 per tag. Over the 
course of the year, Carol uses 200 cages to harvest surfclams, and 
leases 400 cage tags to Bob. Bob in turn uses 100 cage tags and leases 
the 300 remaining tags to Joe who uses 150. Because each cage tag has a 
unique number, we can identify which tags originated from Carol's 
allocation no matter how many times they were leased. Of the original 
625 tag allocation

[[Page 14074]]

a total of 450 tags were used; 200 by Carol, 100 by Bob, 150 by Joe, 
and 175 tags were never used. At the end of the fishing year, Carol 
would receive a cost recovery bill for $225.00 based on the $0.50 tag 
fee multiplied by the 450 tags that were used to land surfclams.
    We have already begun tracking recoverable costs in these 
fisheries. To the extent possible, we are tracking the recoverable 
costs of the surfclam and ocean quahog fisheries separately, although 
some costs are shared (e.g., routine maintenance of our database for 
tracking allocations and cage tags). Under these proposed regulations, 
at the start of the 2017 calendar year, we would use the total 
recoverable costs from the 2016 fiscal year (October 1, 2015, through 
September 30, 2016) and the total value of the fisheries in the 2016 
calendar year, to calculate fee percentages for both surfclam and ocean 
quahogs. We would then use the total number of tags used during the 
2016 fishing year to determine a per-tag fee for the 2017 fishing year.
    In early 2018 (most likely February or March) we would issue the 
first cost recovery bills based on how many cage tags were used in 2017 
and the 2017 per-tag fee. At the same time, we would announce the fee 
percentage and per-tag fees for the 2018 fishing year. If the total 
amount to be collected is higher or lower than the total recoverable 
costs used to calculate the 2017 per-tag fee (i.e., the fiscal year 
2016 recoverable costs), we would adjust the fiscal year 2017 
recoverable costs accordingly when calculating the 2018 per-tag fee. 
This anticipated timeline is detailed in Table 1.

Table 1--Surfclam and Ocean Quahog Proposed Cost Recovery Implementation
                                Timeline
------------------------------------------------------------------------
               Date                          Anticipated action
------------------------------------------------------------------------
October 2015......................  NMFS begins tracking recoverable
                                     costs for surfclam and ocean quahog
                                     ITQ fisheries.
March 2017........................  NMFS announces the 2017 cost
                                     recovery per-tag fee, based on
                                     recoverable costs in fiscal year
                                     2016 and the total number of cage
                                     tags used in calendar year 2016.
March 2018........................  NMFS issues a 2017 bill to each ITQ
                                     shareholder based on the previously
                                     announced per-tag fee and how many
                                     of the shareholder's 2017 cage tags
                                     were ultimately used to land clams.
March 2018........................  Concurrent with issuing bills for
                                     2017, NMFS announces the 2018 cost
                                     recovery per-tag fee, based on
                                     costs in fiscal year 2017 (adjusted
                                     for any anticipated over- or under-
                                     collection) and the total number of
                                     cage tags used in calendar year
                                     2017.
Subsequent years..................  Each year, NMFS would issue bills
                                     for the previous fishing year and
                                     announce the cost recovery per-tag
                                     fee for the current fishing year.
------------------------------------------------------------------------

    Cost recovery bills would be due within 30 days of the date of the 
bill, and would be paid using the Greater Atlantic Regional Fisheries 
Office's fishing industry Web site: Fish Online 
(www.greateratlantic.fisheries.noaa.gov/apps/login/login). Fish Online 
is a secure Web site and NMFS provides a username and password for 
individuals to access their accounts. Members of the fishing industry 
may use the site to check details about their fishing permit and 
landings. The Web page has been used since 2010 to collect cost 
recovery payments for the Tilefish IFQ and Limited Access General 
Category Scallop IFQ fisheries. Cost recovery bills may be paid with a 
credit card or with an account number and routing number from a bank 
account, often referred to as an Automated Clearing House or ACH 
payment. Once bills are issued, ITQ shareholders would be able to log 
onto Fish Online and access the Cost Recovery section. Payments made 
through Fish Online are processed using the U.S. Treasury Department's 
Pay.gov tool, and no bank account or credit card information is 
retained by NMFS. We would not be able to accept partial payments or 
advance payments before bills are issued. We do not anticipate that 
other payment methods would be accepted, as the proposed payment system 
has been effective for other cost recovery programs. However, other 
payment methods may be authorized if the Regional Administrator 
determines that electronic payment is not practicable.
    The proposed regulations include procedures in case an ITQ permit 
holder should fail to pay their cost recovery bill. If a bill is not 
paid by the due date, NMFS would issue a demand letter, formally 
referred to as an initial administrative determination. This letter 
would describe the past-due fee, describe any applicable interest or 
penalties that may apply, stipulate a 30-day deadline to either pay the 
amount due or submit a formal appeal to the Regional Administrator, and 
provide instructions for submitting such an appeal. If no appeal is 
submitted by the deadline, the Regional Administrator would issue a 
final decision letter. An appeal must be submitted in writing, allege 
credible facts or circumstances, and include any relevant information 
or documentation to support the appeal. If an appeal is submitted, the 
Regional Administrator would appoint an appeals officer to determine if 
there is sufficient information to support the appeal and that all 
procedural requirements have been met. The appeals officer would then 
review the record and issue a recommendation to the Regional 
Administrator. The Regional Administrator, acting on behalf of the 
Secretary of Commerce, would then review the appeal and issue a written 
decision. If the Regional Administrator's final determination (whether 
or not there was an appeal) finds that ITQ permit holder is out of 
compliance, full payment would be required within 30 days. Following a 
final determination, we may also suspend the ITQ permit, thereby 
prohibiting any transfer of cage tags or quota share, use of associated 
cage tags to land surfclams or ocean quahogs, or renewal of the ITQ 
permit until full payment, including any interest or penalties, is 
received. If full payment is not received within this final 30-day 
period as required, we may then refer the matter to the appropriate 
authorities, including the Department of Treasury, for collection.
    Each year NMFS would issue a report on the status of the ITQ cost 
recovery program. This report would provide details of the recoverable 
costs to be collected, the success of previous collection efforts, and 
other relevant information.

Biological Reference Points

    Under National Standard 1, the Magnuson-Stevens Act requires that 
each Council FMP define overfishing as a rate or level of fishing 
mortality (F) that jeopardizes a fishery's capacity to produce maximum 
sustainable yield (MSY) on a continuing basis, and defines an 
overfished stock as a stock size that is less than a minimum biomass 
threshold (see 50 CFR 600.310(e)(2)). The Magnuson-Stevens Act also 
requires that each FMP specify

[[Page 14075]]

objective and measurable status determination criteria (i.e., 
biological reference points) for identifying when stocks covered by the 
FMP are overfished or subject to overfishing (see section 303(a)(10), 
16 U.S.C. 1853). To fulfill these requirements, status determination 
criteria are comprised of two components: (1) A maximum fishing 
mortality threshold; and (2) a minimum stock size threshold.
    Currently, the biological reference points in the FMP were set by 
Amendment 12 for ocean quahog (October 26, 1999; 64 FR 57587) and 
Amendment 13 for surfclam (December 16, 2003; 68 FR 69970). Although 
several stock assessments since these amendments have produced new 
biological reference points, there has not been an FMP amendment to 
adjust the figures in the plan. As a result, the definitions in the FMP 
have become inconsistent with the best scientific information 
available. This action would modify how these biological reference 
points are defined in the FMP. Rather than using specific definitions, 
the FMP would include broad criteria to allow for greater flexibility 
in incorporating changes to the definitions of the maximum fishing 
mortality threshold and/or minimum stock size threshold as the best 
scientific information consistent with National Standards 1 and 2 
becomes available. The Council has already adopted this approach in 
several of its other FMPs, and this change would make the Surfclam and 
Ocean Quahog FMP consistent with these other FMPs.
    The maximum fishing mortality threshold for surfclams and ocean 
quahogs would be defined as FMSY (or a reasonable proxy 
thereof), which is a function of productive capacity, and would be 
based upon the best scientific information consistent with National 
Standards 1 and 2. Specifically, FMSY is the fishing 
mortality rate associated with MSY. The maximum fishing mortality 
threshold (FMSY) or a reasonable proxy may be defined as a 
function of (but not limited to): Total stock biomass; spawning stock 
biomass; total egg production; and may include males, females, both, or 
combinations and ratios thereof that provide the best measure of 
productive capacity for each of the species managed under the FMP. 
Exceeding the established fishing mortality threshold would constitute 
overfishing as defined by the Magnuson-Stevens Act.
    The minimum stock size threshold for each of the species under the 
FMP would be defined as \1/2\ BMSY (or a reasonable proxy 
thereof), which is a function of productive capacity, and would be 
based upon the best scientific information, consistent with National 
Standards 1 and 2. BMSY is the stock biomass associated with 
MSY. The minimum stock size threshold (\1/2\ BMSY) or a 
reasonable proxy may be defined as a function of (but not limited to): 
Total stock biomass; spawning stock biomass; total egg production; and 
may include males, females, both, or combinations and ratios thereof 
that provide the best measure of productive capacity for each of the 
species managed under the FMP. The minimum stock size threshold would 
be the level of productive capacity associated with the relevant \1/2\ 
MSY level. Should the measure of productive capacity for the stock fall 
below this minimum threshold, the stock would be considered overfished 
as defined by the Magnuson-Stevens Act. The target for rebuilding, when 
applicable, is specified as BMSY (or reasonable proxy 
thereof) at the level of productive capacity associated with the 
relevant MSY level, under the same definition of productive capacity as 
specified for the minimum stock size threshold.
    Specific definitions or modifications to the status determinations 
criteria, and their associated values, would result from the most 
recent peer-reviewed stock assessments and their panelist 
recommendations. The Northeast Regional Stock Assessment Workshop/Stock 
Assessment Review Committee (SAW/SARC) process is the primary mechanism 
utilized in the Greater Atlantic Region at present to review scientific 
stock assessment advice, including status determination criteria, for 
federally-managed species. There are also periodic reviews, which occur 
outside the SAW/SARC process that are subject to rigorous peer-review 
and may also result in scientific advice to modify or change the 
existing stock status determination criteria. These periodic reviews 
outside the SARC process could include any of the following review 
processes listed below, as deemed appropriate by the Council and NMFS.
     Council Scientific and Statistical Committee (SSC) Review
     Council externally contracted reviews with independent 
experts (e.g., Center for Independent Experts--CIE)
     NMFS internally conducted review (e.g., comprised of NMFS 
scientific and technical experts from NMFS Science Centers or Regions)
     NMFS externally contracted review with independent experts 
(e.g., CIE)
    The scientific advice developed on stock status determination 
criteria would be provided to the Council's SSC. The SSC would use this 
information to develop acceptable biological catch (ABC) 
recommendations that address scientific uncertainty based on the 
information provided in the peer reviewed assessment of the stock. The 
SSC would provide these recommendations to the Council. In addition, 
the Council's Industry Advisory groups are often engaged to provide 
management recommendations to the Council. The Council would then 
consider all available information and advice when developing its own 
recommendations to put forward through the regulatory process for 
setting the annual specifications for the upcoming fishing year, which 
is the primary mechanism for updating and adjusting management measures 
on a regular basis in order to meet the goals of the FMP.

Optimum Yield

    Currently, the FMP specifies a surfclam optimum yield range of 
1.85-3.40 million bushels (98.5 to 181.0 million L), and an ocean 
quahog the optimum yield range of 4.00-6.00 million bushels (213.0 to 
319.4 million L). The Council must select commercial quotas within 
these ranges. Under the current FMP process, modification to the upper 
end of the ranges would require a framework adjustment. Commercial 
quotas may be set below the lower bounds if the SSC sets a lower ABC, 
resulting in an optimum yield range that is higher than ABC. The 
current optimum yield ranges in the FMP were based on scientific 
information and industry input from the 1980's, and have not been 
adjusted to reflect subsequent changes in our understanding of the 
biology of these stocks.
    This action proposes to remove the optimum yield ranges from the 
FMP, but commercial quotas for surfclam and ocean quahog would continue 
to be set under the existing system of catch limits. This is consistent 
with the other FMPs that the Council manages; surfclam and ocean quahog 
are the only stocks with optimum yield ranges specified in the FMP.
    As prescribed under this quota setting process, the Council may not 
exceed the ABC recommendations of the SSC, and would continue to 
specify annual catch limits, targets, and commercial quotas as 
otherwise described in the FMP. As part of the specifications process, 
the advisory panel would develop recommendations for commercial quotas, 
including optimum yield recommendations which would be provided to the 
Council.
    This action also proposes a modification to the regulations 
pursuant to the Secretary's authority under

[[Page 14076]]

section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)) to 
ensure that FMPs are implemented as intended and consistent with the 
requirements of the Magnuson-Stevens Act. This action proposes to 
modify the regulations at 50 CFR 648.11(a) so that vessels holding a 
Federal permit for Atlantic surfclam or ocean quahog are included on 
the list of vessels required to carry a NMFS-certified fisheries 
observer if requested by the Regional Administrator. All other Federal 
fisheries permits issued in the Greater Atlantic Region are already 
covered by either Sec.  648.11(a) or a similar provision at Sec.  
697.12(a), which applies to vessels with an American lobster permit. 
The recent Standardized Bycatch Reporting Methodology (SBRM) Omnibus 
Amendment final rule (June 30, 2015; 80 FR 37182) modified how at-sea 
observers are assigned to fishing vessels. The Council's discussions of 
that action and analysis of alternatives clearly indicate the Council 
intended for the requirement (that vessels carry a NMFS-certified 
observer if requested by the Regional Administrator) to apply to all 
fisheries subject to the SBRM Omnibus Amendment final rule. The 
surfclam and ocean quahog fisheries have historically had very low 
bycatch and have been a low priority for observer coverage. Prior to 
the SBRM Omnibus Amendment final rule, NMFS used its discretion to 
prioritize observer coverage to other fishing fleets. The SBRM Omnibus 
Amendment final rule removed this discretion and implemented a 
formulaic process for assigning observer coverage across fisheries. 
This resulted in observer coverage being assigned to the surfclam and 
ocean quahog fisheries. Subsequent to the publication of the SBRM 
Omnibus Amendment final rule, it became apparent that Sec.  648.11(a) 
does not currently apply to surfclam and ocean quahog vessel permits. 
Over 700 vessels have a surfclam or ocean quahog permit. However, all 
but 15 of those vessels are already subject to this observer 
requirement because they also carry another Federal permit.
    Pursuant to section 303(c) of the Magnuson-Stevens Act, the Council 
has deemed that this proposed rule is necessary and appropriate for the 
purpose of implementing Amendment 17, with the exception of the measure 
noted above as proposed under the Secretary's authority under section 
305(d) of the Magnuson-Stevens Act.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with Amendment 17, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration after 
public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a draft environmental assessment (EA) for this 
FMP amendment that analyzes the impacts on the environment as a result 
of this action. A copy of the draft EA is available from the Federal e-
Rulemaking portal www.regulations.gov. Type ``NOAA-NMFS-2015-0057'' in 
the Enter Keyword or ID field and click search. A copy of the draft EA 
is also available upon request from the Council (see ADDRESSES).
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The Council prepared an analysis of the potential economic 
impacts of this action, which is included in the draft EA for this 
action and supplemented by information contained in the preamble of 
this proposed rule. The SBA defines a small business in the commercial 
harvesting sector, as a firm with receipts (gross revenues) of up to 
$5.5 million for shellfish businesses and $20.5 million for finfish 
businesses. Using these definitions, there are 26 small entities and 3 
large entities that landed surfclam and/or ocean quahog in 2013, the 
most recent year of data available to the Council during development of 
Amendment 17.
    The alternatives for the mechanism to update biological reference 
points and to change the optimum yield range in the FMP are 
administrative in nature. None of the alternatives are expected to 
change fishing methods or activities, nor will they alter the catch and 
landings limits for these species or the allocation of the resources 
among user groups. These administrative alternative measures are not 
expected to impact the economic aspects of these fisheries, as they are 
not expected to produce changes in landings, prices, consumer and 
producer surplus, harvesting costs, enforcement costs, or to have 
distributional effects.
    Four alternatives were considered for the development of a cost 
recovery program. All of the alternatives would recover the costs of 
management, data collection and analysis, and enforcement activities 
related to the ITQ program, as required by the Magnuson-Stevens Act. 
Each alternative varies in how these costs would be distributed across 
the fishery. The total recovered costs could be up to the statutory 
maximum of 3 percent of the ex-vessel value of surfclams and ocean 
quahogs harvested under the ITQ program, although estimates predict 
that the recoverable costs would be much lower than this maximum. A 
conservative initial estimate placed costs at approximately $100,000 
annually, or about 0.2 percent of the ex-vessel value of the fishery in 
2013. For comparison, both a 3-percent fee and a 0.2-percent fee were 
used in the analysis of potential economic impact of the alternatives. 
Table 2 presents the average cost associated with a 0.2- and 3-percent 
cost recovery program for active surfclam and ocean quahog fishery 
small entities in 2013.

      Table 2--Active Surfclam and Ocean Quahog Fishery Small Entities in 2013, Including Entity Average Surfclam and Ocean Quahog (SC/OQ) Revenues
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Per firm        Per firm
                                                                                           Average  cost   Average  cost   average cost    average cost
                                                                                            associated      associated      associated      associated
    Revenue (millions of dollars (M))     Count of small  Average  gross  Average  SC/OQ   with  a 0.2-      with a 3-     with  a 0.2-     with  a 3-
                                           entity  firms      receipts        receipts     percent  fee    percent  fee    percent  fee    percent  fee
                                                                                             recovery        recovery        recovery        recovery
                                                                                              program         program         program         program
--------------------------------------------------------------------------------------------------------------------------------------------------------
0-1M....................................              17        $421,701        $393,488            $787         $11,805             $46            $694
1-2M....................................               5       1,366,782       1,355,820           2,712          40,675             542           8,135
2-5.5M..................................               4       3,591,773       3,489,377           6,979         104,681           1,745          26,170
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................              26       1,091,150       1,054,843           2,110          31,645              81           1,217
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 14077]]

    As illustrated by this analysis and Table 2 (above), the 
anticipated annual fee for each small entity is very low under both the 
anticipated 0.2-percent fee and the statutory maximum 3-percent fee, 
and would not have a significant economic impact on a substantial 
number of small entities.
    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 10, 2016.
Samuel D. Rauch III,
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

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.  648.11, revise paragraph (a) to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

    (a) The Regional Administrator may request any vessel holding a 
permit for Atlantic sea scallops, NE multispecies, monkfish, skates, 
Atlantic mackerel, squid, butterfish, scup, black sea bass, bluefish, 
spiny dogfish, Atlantic herring, tilefish, Atlantic surfclam, ocean 
quahog, or Atlantic deep-sea red crab; or a moratorium permit for 
summer flounder; to carry a NMFS-certified fisheries observer. A vessel 
holding a permit for Atlantic sea scallops is subject to the additional 
requirements specific in paragraph (g) of this section. Also, any 
vessel or vessel owner/operator that fishes for, catches or lands 
hagfish, or intends to fish for, catch, or land hagfish in or from the 
exclusive economic zone must carry a NMFS-certified fisheries observer 
when requested by the Regional Administrator in accordance with the 
requirements of this section.
* * * * *
0
3. In Sec.  648.14, redesignate paragraphs (j)(3) through (6) as (j)(4) 
through (7) and add paragraph (j)(3) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (j) * * *
    (3) ITQ cost recovery. (i) Fail to pay an ITQ cost recovery bill 
for which they are responsible by the due date specified in a final 
decision, as specified at Sec.  648.74(c)(6)(iii)(C).
    (ii) Possess or land surfclams or ocean quahogs harvested in or 
from the EEZ if the associated ITQ permit has been suspended for non-
payment, as specified at Sec.  648.74(c)(6)(iii)(C).
* * * * *
0
4. In Sec.  648.72, revise paragraphs (a) introductory text and (a)(1) 
to read as follows:


Sec.  648.72  Surfclam and ocean quahog specifications.

    (a) Establishing catch quotas. The amount of surfclams or ocean 
quahogs that may be caught annually by fishing vessels subject to these 
regulations will be specified for up to a 3-year period by the Regional 
Administrator. Specifications of the annual quotas will be accomplished 
in the final year of the quota period, unless the quotas are modified 
in the interim pursuant to paragraph (b) of this section.
    (1) Quota reports. On an annual basis, MAFMC staff will produce and 
provide to the MAFMC an Atlantic surfclam and ocean quahog annual quota 
recommendation paper based on the ABC recommendation of the SSC, 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) through (vi) of 
this section. Based on that report, and at least once prior to August 
15 of the year in which a multi-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 for up to a 3-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 quotas.
    (ii) Fishing mortality rates relative to the quotas.
    (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.
* * * * *
0
5. In Sec.  648.74, add paragraph (c) to read as follows:


Sec.  648.74  Individual Transferable Quota (ITQ) Program.

* * * * *
    (c) ITQ cost recovery--(1) General. The cost recovery program 
collects fees of up to three percent of the ex-vessel value of 
surfclams or ocean quahogs harvested under the ITQ program in 
accordance with the Magnuson-Stevens Act. NMFS collects these fees to 
recover the actual costs directly related to the management, data 
collection, and enforcement of the surfclam and ocean quahog ITQ 
program.
    (2) Fee responsibility. If you are an ITQ permit holder who holds 
ITQ quota share and receives an annual allocation pursuant to paragraph 
(a) of this section, you shall incur a cost recovery fee, based on all 
landings of surfclams or ocean quahogs authorized under your initial 
annual allocation of cage tags. You are responsible for paying the fee 
assessed by NMFS, even if the landings are made by another ITQ permit 
holder (i.e., if you transfer cage tags to another individual who 
subsequently uses those tags to land clams). If you permanently 
transfer your quota share, you are still responsible for any fee that 
results from your initial annual allocation of cage tags even if the 
landings are made after the quota share is permanently transferred.
    (3) Fee basis. NMFS will establish the fee percentages and 
corresponding per-tag fees for both the surfclam and ocean quahog ITQ 
fisheries each year. The fee percentages cannot exceed three percent of 
the ex-vessel value of surfclams and ocean quahogs harvested under the 
ITQ fisheries pursuant to section 304(d)(2)(B) of the Magnuson-Stevens 
Act.
    (i) Calculating fee percentage. In the first quarter of each 
calendar year, NMFS will calculate the fee percentages for both the 
surfclam and ocean quahog ITQ fisheries based on information from the 
previous year. NMFS will use the following equation to annually 
determine the fee percentages: Fee percentage = the lower of 3 percent 
or (DPC/V) x 100, where:
    (A) ``DPC,'' or direct program costs, are the actual incremental 
costs for the previous fiscal year directly related to the management, 
data collection, and enforcement of the ITQ program. ``Actual 
incremental costs'' mean those costs that would not have been incurred 
but for the existence of the ITQ program. If the amount of fees 
collected by NMFS is greater or lesser than the actual incremental 
costs incurred, the DPC will be adjusted accordingly for calculation of 
the fee percentage in the following year.

[[Page 14078]]

    (B) ``V'' is the total ex-vessel value from the previous calendar 
year attributable to the ITQ fishery.
    (ii) Calculating per-tag fee. To facilitate fee collection, NMFS 
will convert the annual fee percentages into per-tag fees for both the 
surfclam and ocean quahog ITQ fisheries. NMFS will use the following 
equation to determine each per-tag fee: Per-Tag Fee = (Fee Percentage x 
V)/T, where:
    (A) ``T'' is the number of cage tags used, pursuant to Sec.  
648.77, to land shellfish in the ITQ fishery in the previous calendar 
year.
    (B) ``Fee percentage'' and ``V'' are defined in paragraph (c)(i) of 
this section.
    (C) The per-tag fee is rounded down so that it is expressed in 
whole cents.
    (iii) Publication. During the first quarter of each calendar year, 
NMFS will announce the fee percentage and per-tag fee for the surfclam 
and ocean quahog ITQ fisheries, and publish this information on the 
Regional Office Web site (www.greateratlantic.fisheries.noaa.gov).
    (4) Calculating individual fees. If you are responsible for a cost 
recovery fee under paragraph (c)(2) of this section, the fee amount is 
the number of ITQ cage tags you were initially allocated at the start 
of the fishing year that were subsequently used to land shellfish 
multiplied by the relevant per-tag fee, as described in paragraph 
(c)(3)(ii) of this section. If no tags from your initial allocation are 
used to land clams you will not incur a fee.
    (5) Fee payment and collection. NMFS will send you a bill each year 
for any applicable ITQ cost recovery fee.
    (i) Payment due date. You must submit payment within 30 days of the 
date of the bill.
    (ii) Payment method. You may pay your bill electronically using a 
credit card or direct Automated Clearing House withdrawal from a 
designated checking account through the Federal web portal, 
www.pay.gov, or another internet site designated by the Regional 
Administrator. Instructions for electronic payment will be included 
with your bill and are available on the payment Web site. 
Alternatively, payment by check may be authorized by the Regional 
Administrator if he/she determines that electronic payment is not 
practicable.
    (6) Payment compliance. If you do not submit full payment by the 
due date, NMFS will notify you in writing via an initial administrative 
determination (IAD) letter.
    (i) IAD. In the IAD, NMFS will:
    (A) Describe the past-due fee;
    (B) Describe any applicable interest charges that may apply;
    (C) Provide you 30 days to either pay the specified amount or 
submit an appeal; and
    (D) Include instructions for submitting an appeal.
    (ii) Appeals. If you wish to appeal the IAD, your appeal must:
    (A) Be in writing;
    (B) Allege credible facts or circumstances;
    (C) Include any relevant information or documentation to support 
your appeal; and
    (D) Be received by NMFS no later than 30 calendar days after the 
date on the IAD. If the last day of the time period is a Saturday, 
Sunday, or Federal holiday, the time period will extend to the close of 
the business on the next business day. Your appeal must be mailed or 
hand delivered to the address specified in the IAD.
    (iii) Final decision--(A) Final decision on your appeal. If you 
appeal an IAD, the Regional Administrator shall appoint an appeals 
officer. After determining there is sufficient information and that all 
procedural requirements have been met, the appeals officer will review 
the record and issue a recommendation on your appeal to the Regional 
Administrator, which shall be advisory only. The recommendation must be 
based solely on the record. Upon receiving the findings and 
recommendation, the Regional Administrator, acting on behalf of the 
Secretary of Commerce, will issue a written decision on your appeal 
which is the final decision of the Department of Commerce.
    (B) Final decision if you do not appeal. If you do not appeal the 
IAD within 30 calendar days, NMFS will notify you via a final decision 
letter. The final decision will be from the Regional Administrator and 
is the final decision of the Department of Commerce.
    (C) If the final decision determines that you are out of 
compliance. (1) After the final decision has been made, NMFS may 
suspend your ITQ permit, thereby prohibiting any transfer of cage tags 
or quota share, use of associated cage tags to land surfclams or ocean 
quahogs, or renewal of your ITQ permit until the outstanding balance is 
paid in full, including any applicable interest.
    (2) The final decision will require full payment within 30 calendar 
days.
    (3) If full payment is not received within 30 calendar days of 
issuance of the final decision, NMFS may refer the matter to the 
appropriate authorities for the purposes of collection or enforcement.
    (7) Annual report. NMFS will publish annually a report on the 
status of the ITQ cost recovery program. The report will provide 
details of the costs incurred by NMFS for the management, data 
collection, and enforcement of the surfclam and ocean quahog ITQ 
program, and other relevant information at the discretion of the 
Regional Administrator.
0
6. In Sec.  648.79, revise paragraph (a)(1) to read as follows:


Sec.  648.79  Surfclam and ocean quahog framework adjustments to 
management measures.

    (a)* * *
    (1) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC 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 MAFMC meeting. The MAFMC's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Adjustments within existing ABC control rule 
levels; adjustments to the existing MAFMC risk policy; introduction of 
new AMs, including sub-ACTs; description and identification of EFH (and 
fishing gear management measures that impact EFH); habitat areas of 
particular concern; set-aside quota for scientific research; VMS; and 
suspension or adjustment of the surfclam minimum size limit. Issues 
that require significant departures from previously contemplated 
measures or that are otherwise introducing new concepts may require an 
amendment of the FMP instead of a framework adjustment.
* * * * *
[FR Doc. 2016-05846 Filed 3-15-16; 8:45 am]
BILLING CODE 3510-22-P lley End:?>