[Federal Register Volume 69, Number 222 (Thursday, November 18, 2004)]
[Proposed Rules]
[Pages 67528-67531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25640]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 041108311-4311-01; I.D. 110204B]
RIN 0648-AR52


Fisheries of the Northeastern United States; Proposed 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: Proposed rule.

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SUMMARY: NMFS proposes quotas for the Atlantic surfclam, ocean quahog, 
and Maine mahogany ocean quahog fisheries for 2005-2007. Regulations 
governing these fisheries require NMFS to publish the proposed 
specifications for the 2005-2007 fishing years and seek public comment 
on such proposed measures. The intent of this action is to propose 
allowable harvest levels of Atlantic surfclams and ocean quahogs from 
the Exclusive Economic Zone and an allowable harvest level of Maine 
mahogany ocean quahogs from Atlantic waters north of 43 50' N. lat.

DATES: Comments must be received no later than 5 p.m., eastern standard 
time, on December 20, 2004.

ADDRESSES: Written comments on the proposed specifications should be 
sent to:
    <bullet> Email /mailbox address: The mailbox address for providing 
email comments is <a href="/cdn-cgi/l/email-protection#96a6a0a2aed7c4a3a4d6f8f9f7f7b8f1f9e0"><span class="__cf_email__" data-cfemail="b58583818df4e78087f5dbdad4d49bd2dac3">[email protected]</span></a>. Include in the subject line of the 
email the following document identifier: ``Comments on Surfclam/Ocean 
Quahog Proposed Specifications.''
    <bullet> Federal e-Rulemaking Portal: www.Regulations.gov
    <bullet> Mail address for mailing paper,disk, or CD-ROM comments: 
Patricia A. Kurkul, Regional Administrator, Northeast Region, NMFS, One 
Blackburn Drive, Gloucester, MA 01930-2298. Mark on the outside of the 
envelope,``Comments on Surfclam/Ocean Quahog Proposed Specifications.''
    <bullet> Fax number: Facsimile (fax) to (978) 281-9135. Comments on 
this proposed rule may be submitted via email.
    Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, Initial Regulatory Flexibility 
Analysis

[[Page 67529]]

(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. A copy of the EA/RIR/IRFA is accessible via the 
Internet at http:/www.nero.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: 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 Fishery Management Council 
(Council), specify quotas for surfclams and ocean quahogs on an annual 
basis from a range that represents the optimum yield (OY) for each 
fishery. It is the policy of the Council that the levels selected allow 
sustainable fishing to continue at that level for at least 10 years for 
surfclams and 30 years for ocean quahogs. In addition to this 
constraint, the Council policy also considers the economic impacts of 
the quotas. Regulations implementing Amendment 10 to the FMP (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 hL 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. In proposing these quotas, the Council 
considered the available 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. This information was presented in a written report prepared by 
the Council staff.
    NMFS is taking this opportunity to implement clarifications to the 
Atlantic surfclam and ocean quahog regulations. Sections 648.70(a), and 
648.71(a) and (a)(2), removes references to the dates on which the 
initial allocation of surfclams and ocean quahogs shall be determined, 
and removes 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 section Sec.  
648.73(a)(1) is corrected through re-insertion of a digit that was 
dropped in a previous rulemaking. These administrative revisions are 
minor, non-substantive changes and do not change operating practices in 
the fishery.
    The proposed quotas for the 2005-2007 Atlantic surfclam, ocean 
quahog, and Maine mahogany ocean quahog fisheries are shown in the 
table below. The status quo level of 2004 for Maine ocean quahog and 
surfclams is proposed to be maintained for 2005-2007, but the ocean 
quahog quota would be increased incrementally by 20 percent over the 
three-year period.

                               PROPOSED 2005-2007 SURFCLAM/OCEAN QUAHOG QUOTAS\1\
----------------------------------------------------------------------------------------------------------------
                                                        2005                  2006                  2007
                                               -----------------------------------------------------------------
                                                    bu         hL         bu         hL         bu         hL
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\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........................    100,000     35,240    100,000     35,240    100,000     35,240
----------------------------------------------------------------------------------------------------------------
\1\ Numerical values in table are in millions
\2\ 1 bushel = 1.88 cubic ft. = 53.24 liters
\3\ 1 bushel = 1.2445 cubic ft. = 35.24 liters

Surfclams

    In 1999, the Council expressed its intention to increase the 
surfclam quota to OY over a period of 5 years (OY = 3.4 million bushels 
(181 million L)). The proposed 2005-2007 status quo surfclam quota was 
developed after reviewing the results of the 37th Northeast Regional 
Stock Assessment Workshop (SAW 37) for surfclams, held in 2003. This 
recommendation is consistent with the following SAW 37 recommendation: 
``Although the stock is above Bmsy, uncertainty in the current level of 
and future trend in biomass suggest that substantial increases in catch 
levels are not advised.'' Furthermore, as of the 2002 fishing year the 
surfclam stock in the EEZ is not overfished and overfishing is not 
occurring. Industry reports that the current demand for clam products 
is very strong, with processors describing an inability to fill all 
orders due to a lack of clams. However, information reported by 
industry in their vessel trip reports has shown a steady reduction in 
the landings per unit of effort (LPUE), an important indicator that the 
annual quota is approaching the OY for the resource. Another factor in 
the low LPUE is that the majority of the surfclam catch continues to be 
derived from one area (northern New Jersey). Based on the information 
and advice from the most recent assessment for surfclams, the Council 
is recommending, and NMFS is proposing, to maintain the status quo for 
the 2005-2007 quotas of 3.4 million bushels (181 million L). This quota 
represents the maximum allowable quota under the FMP.

Ocean Quahogs

    The 2005-2007 quotas for ocean quahogs, which reflect a 20-percent 
increase above status quo, are based on results from the 2004 
assessment conducted by the 38th Northeast Regional Stock Assessment 
Workshop (SAW 38) for ocean quahogs, held in January 2004. The 
assessment for ocean quahogs found that the current biomass is high, 
and the resource surveyed from southern New England to southern 
Virginia is not overfished and overfishing is not occurring as of the 
2002 fishing year. As a result, the Council concluded that an increase 
in the quota is warranted. An additional reason for the recommended 
increase in

[[Page 67530]]

ocean quahog quota over the next 3 years is the continued low surfclam 
quota in New Jersey state waters from historically high levels. In 
response, the Council wants to support increased access to ocean 
quahogs. The best scientific advice currently available suggests that 
an increase in quota would be sustainable. Based on this advice, the 
Council is recommending, and NMFS is proposing, an ocean quahog quota 
for 2005 of 5.333 million bushels (284 million L), a 2006 quota of 
5.666 million bushels (301.6 million L), and a 2007 quota of 6.0 
million bushels (319.4 million L). In addition, the Council is 
recommending, and NMFS is proposing, no change to the Maine ocean 
quahog quota from the 2004 level of 100,000 Maine bushels (35,240 hL). 
Amendment 10 to the FMP allows an annual quota of 100,000 Maine bushels 
(35,240 hL), and specifies that a quota over 100,000 Maine bushels 
(35,240 hL) can be recommended only if a survey of the Maine ocean 
quahog stock warrants such an increase. However, a survey of this area 
has not been completed.
    The Atlantic surfclam and ocean quahog quotas are specified in 
standard bushels of 53.24 L per bushel, while the Maine mahogany ocean 
quahog quota is specified in ``Maine'' bushels of 35.24 L per bushel. 
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.

Classification

    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866.
    The Council prepared an IRFA in section 8.0 of the RIR that 
describes the economic impacts this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, the objectives and the legal basis for this action are 
contained in the SUPPLEMENTARY INFORMATION section of this Proposed 
Rule. This action does not duplicate, overlap, or conflict with any 
other Federal rules. A summary of the IRFA follows:

Vessels

    In 2003, a total of 50 vessels reported harvesting surfclams or 
ocean quahogs from Federal waters under an Individual Transferable 
Quota (ITQ) system. Average 2003 gross income for surfclam harvesters 
was $1,089,417 per vessel, and $865,204 per vessel for ocean quahog 
harvesters. In the small artisanal fishery for ocean quahogs in Maine, 
35 vessels reported harvests in the clam logbooks, with an average 
value of $139,890 per vessel. All of these vessels fall within the 
definition of a small entity. The proposed rule would maintain the 2004 
status quo level for the surfclam quota, increase the ocean quahog 
quota by 20 percent over three years, and maintain the 2004 status quo 
level for the Maine ocean quahog quota. The direct impacts of any quota 
adjustment would be felt by the entities holding surfclam and/or ocean 
quahog quota allocations. The actual number of individuals or 
businesses holding the quota allocations will be lower than indicated 
below since each holder will often maintain multiple allocations. The 
analysis of alternatives for each fishery contains a ``no action'' 
alternative as required by the National Environmental Policy Act. The 
``no action'' alternatives would allow unlimited harvests from the 
surfclam, ocean quahog, and Maine ocean quahog resources, and would be 
in violation of National Standard 1 of the Magnuson-Stevens Fishery 
Management and Conservation Act, thus these alternatives are not 
discussed here as reasonable alternatives.
    The Council identified three surfclam quota alternatives in 
addition to the ``no-action'' alternative. The preferred alternative of 
3.400 million bu (181 million L) for 2005-2007, an alternative with 
45.6 percent decrease to 1.85 million bu (98.49 million L), and an 
alternative with a 4.4 percent decrease to 3.25 million bu (173.02 
million L) were analyzed. The minimum allowable quota specified in the 
current OY range is 1.850 million bu (98.5 million L) 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 would 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 three years, an alternative with a 20 
percent (1.0 million bu (53.25 million L)) decrease, an alternative 
with the 2004 status quo of 5.0 million bushels (266.18 million L), and 
an alternative with a 20 percent (1.0 million bu (53.24 million L)) 
increase in one year were analyzed. The minimum allowable quota 
specified in the current OY range is 4.000 million bu (212.94 million 
L) of ocean quahogs. Adoption of a 4.0 million bu (212.94 million L) 
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 would 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 is recommending a gradual increase, with annual reviews to 
confirm its appropriateness. Although two alternatives would allow for 
increased revenues, the Council recommends a gradual 20 percent 
increase over three years, rather than the 20 percent increase in the 
first year.
    The quota for Maine mahogany ocean quahogs is specified at a 
maximum 100,000 bu (35,240 hL). The FMP specifies that upward 
adjustments to the quota would require a scientific survey and stock 
assessment of the Maine mahogany ocean quahog resource. However, no 
survey or assessment has been conducted. The Council considered two 
alternative quotas for the Maine mahogany ocean quahog fishery, in 
addition to the preferred alternative of 100,000 Maine bushels (35,240 
hL), including 50,000 Maine bushels and 92,500 Maine bushels (17,620 
and 32,596 hL). Any quota the Council would have recommended below the 
1999 landing level of 93,938 Maine bu (33,104 hL) would have resulted 
in a decrease in revenues to individual vessels.

[[Page 67531]]

Processors

    In 2003, there were 9 processors that participated in the surfclam 
and ocean quahog fisheries, plus 10 companies that bought ocean quahogs 
directly from vessels from within the State of Maine. Of the nine 
processors, approximately six are responsible for the vast majority of 
purchases in the ex-vessel market and sale of processed clam products 
in appropriate wholesale markets. Impacts to surfclam and ocean quahog 
processors would most likely mirror the impacts of the various quotas 
to vessels as discussed above. Revenues earned by processors would be 
derived from the wholesale market for clam products, and since a large 
number of substitute products (i.e., other food products) are 
available, the demand for processed clam products is likely to be 
price-dependent.

Allocation Holders

    As of September 2004, surfclam allocation holders totaled 82, while 
56 firms or individuals held ocean quahog allocation. If the 
recommended quotas are accepted, i.e., status quo for surfclams, a 20 
percent increase over three years for ocean quahogs, and no change from 
the 2003 quota for Maine mahogany ocean quahogs, it is likely that 
impacts to allocation holders or buyers would be minimal. 
Theoretically, increases in quota would most likely benefit those who 
purchase quota (through lower prices (values)) and negatively impact 
sellers of quota because of reduction in value. Decreases in quota 
would most likely have an opposite effect.

Reporting and Recordkeeping Requirements

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

    Dated: November 12, 2004.
Rebecca Lent,
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

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

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

    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).
* * * * *
    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 million bu (98.5 to 181 
million L) per year. The amount of ocean quahogs available for harvest 
annually must be specified within the range of 4 to 6 million bu (213 
to 319.4 million 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.
    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. 04-25640 Filed 11-17-04; 8:45 am]
BILLING CODE 3510-22-S


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