81142 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

■ g. Amending paragraph (e)(6)(ii) by 

removing the reference ‘‘(e)(3)(iii)(C)’’ 

and adding in its place ‘‘(e)(3)(ii)(E).’’ 

§ 21.29 Falconry standards and falconry 

permitting. 

* * * * * 

(c) * * * 

(3) * * * 

(i) * * * 

(E) You may take raptors less than 1 

year old, except nestlings, from the wild 

during any period or periods specified 

by the State, tribe, or territory. You may 

take any raptor species from the wild 

except a federally listed threatened or 

endangered species or the following 

species: Bald eagle (Haliaeetus 

leucocephalus), white-tailed eagle 

(Haliaeetus albicilla), Steller’s sea-eagle 

(Haliaeetus pelagicus), golden eagle 

(Aquila chrysaetos), American swallowtailed kite (Elanoides forficatus), 

Swainson’s hawk (Buteo swainsoni), 

peregrine falcon (Falco peregrinus), 

flammulated owl (Otus flammeolus), elf 

owl (Micrathene whitneyi), and shorteared owl (Asio flammeus). 

* * * * * 

(d) * * * 

(9) Inspections. * * * 

* * * * * 

Dated: December 14, 2010. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–32243 Filed 12–23–10; 8:45 am] 

BILLING CODE 4310–55–P 

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. 

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°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. 


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Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 81143 

FINAL 2011–2013 ATLANTIC SURFCLAM AND OCEAN QUAHOG 1 QUOTAS 

2011 2012 2013 

bu hL bu hL bu hL 

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 

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 MagnusonStevens 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 § 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 


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81144 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

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] 

BILLING CODE 3510–22–P 


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