[Federal Register Volume 87, Number 225 (Wednesday, November 23, 2022)]
[Rules and Regulations]
[Pages 71527-71530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25469]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 221116-0244]
RIN 0648-BI18


Fisheries of the Northeastern United States; Amendment 20 to the 
Atlantic Surfclam and Ocean Quahog Fishery Management Plan

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

ACTION: Final rule.

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SUMMARY: This final rule announces approval of, and implements 
management measures contained in, Amendment 20 to the Atlantic Surfclam 
and Ocean Quahog Fishery Management Plan. The Mid-Atlantic Fishery 
Management Council developed these measures to limit the amount of 
surfclam or ocean quahog individual transferable quota share or annual 
allocation in the form of cage tags that an individual or their family 
members are permitted to hold. These changes are intended to ensure the 
management plan is consistent with requirements of the Magnuson-Stevens 
Fishery

[[Page 71528]]

Conservation and Management Act, and to improve the management of these 
fisheries.

DATES: This rule is effective December 23, 2022.

ADDRESSES: Copies of Amendment 20, including the Environmental 
Assessment (EA), with its associated Finding of No Significant Impact 
(FONSI) are available on request from the Mid-Atlantic Fishery 
Management Council, 800 North State Street, Suite 201, Dover, DE 19901. 
These documents are also accessible via the internet at https://www.mafmc.org.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to (enter office name) and to 
www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under 30-day Review--Open for 
Public Comments'' or by using the search function.

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

SUPPLEMENTARY INFORMATION:

Background

    This final rule concurrently notifies the public of the approval of 
Amendment 20, also known as the Excessive Shares Amendment, to the 
Atlantic Surfclam and Ocean Quahog Fishery Management Plan (FMP) on 
behalf of the Secretary of Commerce, and implements the management 
measures contained in the Amendment. The Mid-Atlantic Fishery 
Management Council developed this amendment to establish limits to the 
amount of individual transferable quota (ITQ) share or cage tags such 
that any particular individual, corporation, or other entity cannot 
acquire an excessive share of such privileges, 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. We published a notice of availability on August 
10, 2022 (87 FR 48617), announcing a 60-day period for the public to 
review and provide written comments on whether we, acting on behalf of 
the Secretary of Commerce, should approve Amendment 20. This comment 
period ended on October 11, 2022. On August 24, 2022, we published a 
proposed rule (87 FR 51955) to implement the amendment and solicit 
written comments on the proposed rule for a 30-day period, which ended 
on September 23, 2022.
    We reviewed all comments received during these comment periods, 
whether directed at our approval decision or the proposed regulations. 
See Comments and Responses section for more information. Now, on behalf 
of the Secretary of Commerce, we are announcing the approval of 
Amendment 20, and issuing this final rule implementing Amendment 20, 
consistent with the review and approval process outlined in section 
304(a) of the Magnuson-Stevens Act. The full development history of 
this action was provided in the proposed rule and is not repeated here.

Excessive Share Caps

    This action establishes separate caps for quota share and for 
annual cage tags for both the surfclam and ocean quahog ITQ programs. 
The amount of quota share that an individual or entity is permitted to 
have ownership in will be capped at 35 percent of the surfclam quota 
and 40 percent of the ocean quahog quota. Higher caps are established 
for cage tags in recognition that additional temporary consolidation 
through leasing or other transactions may be warranted within a fishing 
year to meet market demand because of the limited number of processors 
available. There is a limited market for fresh surfclams or ocean 
quahogs. The fisheries largely rely on a small number of processing 
plants to convert these species into final products or ingredients for 
other food companies. These plants operate by leasing cage tags from 
multiple quota shareholders and then providing those tags to harvesting 
vessels that deliver clams, as needed by the plants. The amount of 
annual cage tags that an individual or entity is permitted to have in a 
given year will be capped at 65 percent for surfclam and 70 percent for 
ocean quahog.
    No person or entity currently exceeds the quota share cap 
implemented in this final rule, nor has any entity exceeded the cap on 
annual cage tags in recent years. The Council selected these cap limits 
to ensure that potential future consolidation does not reach the level 
of an excessive share of this fishery, and were not intended to 
restrict current quota share holdings. The proposed rule included a 
detailed description of how these caps would be monitored and enforced, 
including examples, and that information is not repeated here.
    As part of this amendment, the Council must conduct a review of 
these ITQ ownership cap measures at least every 10 years, or sooner as 
needed. This review should include an evaluation of the effects and 
effectiveness of the caps in the fishery and whether the cap levels 
remain appropriate or should be adjusted.

Multi-Year Specifications

    This action sets the maximum duration of multi-year specifications 
to the number of years needed to align with the stock assessment 
schedule approved by the Northeast Region Coordinating Council (NRCC). 
The NRCC is composed of representatives from the Mid-Atlantic Fishery 
Management Council, the New England Fishery Management Council, the 
Atlantic States Marine Fisheries Commission, the NMFS Greater Atlantic 
Regional Fisheries Office, and the Northeast Fishery Science Center. 
One of its roles is to develop a schedule for fishery stock assessments 
that balances the needs of the numerous fisheries in the region with 
the available resources. The current schedule calls for an updated 
stock assessment every 4 years for surfclam and every 6 years for ocean 
quahog. These assessment intervals are the result of recent 
improvements to the methods used to survey these wild populations. 
Allowing specifications to be set for the full duration between 
assessments will allow the Council, Council staff, and NMFS staff to 
avoid spending time developing new specifications packages when no new 
information on the health of the stocks is available. The Council and 
its Scientific and Statistical Committee will continue the current 
practice of reviewing the specifications each year, and making mid-
cycle adjustments if conditions and available information warrant 
changes.

Comments and Responses

    A total of three comments were received on the proposed rule and 
notice of availability. All three comments were submitted by 
representatives of the surfclam fishing industry and supported all of 
the new measures as proposed.

Changes From the Proposed Rule

    There are no changes to the measures from the proposed rule.

Classification

    Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the 
Assistant Administrator for Fisheries, NOAA, has determined that this 
final rule is consistent with Amendment 20, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

[[Page 71529]]

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a final regulatory 
flexibility analysis was not required and none was prepared.
    This final rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This rule revises the existing requirements for the collection 
of information 0648-0240 by removing the section of the ITQ Ownership 
form that requires identification of corporate officers and removing 
some of the ``additional transaction details'' questions from the ITQ 
transfer form. This information will not be used to define or monitor 
the excessive share caps and collecting the information is no longer be 
necessary. Removing these questions is not anticipated to change the 
number of respondents or responses and will not have a measurable 
reduction in burden hours or costs. An extension of the collection is 
also requested through this action. Public reporting burden for the ITQ 
ownership form is estimated to be 1 hour to complete for new entrants 
and 5 minutes to review a pre-filled form for renewing entities. The 
ITQ transfer form is estimated to take 5 minutes to complete. These 
estimates include the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    We invite the general public and other Federal agencies to comment 
on proposed and continuing information collections, which helps us 
assess the impact of our information collection requirements and 
minimize the public's reporting burden. Written comments and 
recommendations for this information collection should be submitted on 
the following website: www.reginfo.gov/public/do/PRAMain. You can find 
this particular information collection by using the search function and 
entering either the title of the collection or the OMB Control Number 
0648-0240.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: November 16, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
648 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.  648.14, add paragraph (j)(3)(viii) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (j) * * *
    (3) * * *
    (viii) Take action to circumvent an ITQ quota share cap or cage tag 
cap specified in 648.74(a)(2) or fail to take corrective action if such 
cap is exceeded inadvertently.
* * * * *

0
3. In Sec.  648.72 paragraphs (a) introductory text, paragraph (a)(1) 
introductory text, and paragraph (b) 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 by the Regional Administrator for a 
period up to the maximum number of years needed to align with the 
Northeast Region Coordinating Council-approved stock assessment 
schedule. 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 a period up to the maximum number of years needed to 
align with the Northeast Region Coordinating Council-approved stock 
assessment schedule. In selecting the annual quotas, the MAFMC shall 
consider the current stock assessments, catch reports, and other 
relevant information concerning:
* * * * *
    (b) Interim quota modifications. Based upon information presented 
in the quota reports described in paragraph (a)(1) of this section, the 
MAFMC may recommend to the Regional Administrator a modification to the 
annual quotas that have been specified for a multi-year period and any 
estimate of DAH or DAP made in conjunction with such specifications 
within the ranges specified in paragraph (a)(1) of this section. Based 
upon the MAFMC's recommendation, the Regional Administrator may propose 
surfclam and or ocean quahog quotas that differ from the annual quotas 
specified for the current multi-year period. Such modification shall be 
in effect for a period up to the maximum number of years needed to 
align with the Northeast Region Coordinating Council-approved stock 
assessment schedule, unless further modified. Any interim modification 
shall follow the same procedures for establishing the annual quotas 
that are specified for a multi-year period.
* * * * *

0
4. In Sec.  648.74, add paragraph (a)(2) and revise paragraph (b)(3) to 
read as follows:


Sec.  648.74   Individual Transferable Quota (ITQ) Program.

    (a) * * *
    (2) ITQ ownership caps. (i) Quota share. A business or individual 
is not eligible to be issued an ITQ permit and is not eligible to 
acquire additional quota share, if, as a result of the issuance of the 
permit or quota share transfer, the business or individual, or any 
other person who is a shareholder or partner, or their immediate family 
member, would individually or collectively have an ownership interest 
in more than 35 percent of the total surfclam quota or 40 percent of 
the total ocean quahog quota.
    (ii) Cage tags. A business or individual is not eligible to be 
issued an ITQ permit and is not eligible to acquire

[[Page 71530]]

additional cage tags, if, as a result of the issuance of the permit or 
cage tag transfer, the business or individual, or any other person who 
is a shareholder or partner, or their immediate family member, would 
individually or collectively have an ownership interest in more than 65 
percent of the total surfclam cage tags issued that year or 70 percent 
of the total ocean quahog cage tags issued that year.
    (iii) Enforcement. The following conditions apply for the purposes 
of monitoring and enforcing these caps.
    (A) Any partial or shared ownership is counted as full ownership by 
each party for the purpose of monitoring these caps. For example, if 
two people share ownership of a business with quota share, the full 
amount of quota share held by the business counts toward the cap for 
both owners.
    (B) Having an ownership interest includes, but is not limited to, 
persons who are shareholders in a corporation that holds an ITQ permit, 
who are partners (general or limited) to an ITQ permit holder, who are 
immediate family members of an ITQ permit holder, or who, in any way, 
partly own an entity that holds an ITQ permit.
    (C) Immediate family members include individuals connected by the 
following relationships:
    (1) Spouse, and parents thereof;
    (2) Children, and spouses thereof;
    (3) Parents, and spouses thereof;
    (4) Siblings, and spouses thereof; and
    (5) Grandparents and grandchildren, and spouses thereof.
    (D) The quota share and cage tag caps do not apply to a bank or 
other lender that holds ITQ quota share as collateral on a loan as 
described in paragraph (a)(1)(i)(C) of this section. The quota share 
held as collateral and the associated cage tags will be treated as if 
it is held by the borrower.
    (E) Compliance with these ownership caps is based on the total 
amount of quota share or cage tags controlled throughout a fishing 
year. In this instance, control means the cumulative total amount of 
quota share or cage tags, including the amount held by the ITQ permit 
at the start of the fishing year plus any quota share or cage tags 
acquired by the ITQ permit throughout the fishing year. This measure of 
control during the fishing year is increased by acquiring quota share 
or cage tags from other ITQ permits, but is not reduced by any quota 
share or cage tags that are transferred to another ITQ permit.
    (iv) Review. The MAFMC shall review these ITQ ownership cap 
measures at least every 10 years, or sooner as needed. Such a review 
should include an evaluation of the effects and effectiveness of the 
caps in the fishery and whether the cap levels remain appropriate or 
should be adjusted.
    (b) * * *
    (3) Denial of ITQ transfer application. The Regional Administrator 
may reject an application to transfer surfclam or ocean quahog ITQ 
quota share or cage tags for the following reasons: The application is 
incomplete; the transferor or transferee does not possess a valid 
surfclam or ocean quahog ITQ permit for the appropriate species; the 
transfer is not allowed under paragraph (a)(1)(ii)(C)(3) of this 
section; the transferor's or transferee's surfclam or ocean quahog ITQ 
permit has been sanctioned pursuant to an enforcement proceeding under 
15 CFR part 904; the transfer would result in exceeding an ownership 
cap under paragraph (a)(2) of this section; or any other failure to 
meet the requirements of this subpart. Upon denial of an application to 
transfer ITQ allocation, the Regional Administrator shall send a letter 
to the applicant describing the reason(s) for the denial. The decision 
by the Regional Administrator is the final decision of the Department 
of Commerce; there is no opportunity for an administrative appeal.
* * * * *
[FR Doc. 2022-25469 Filed 11-22-22; 8:45 am]
BILLING CODE 3510-22-P