Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Rules and Regulations 25853

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 94–135,

adopted May 3, 1995, and released May

9, 1995. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC’s Reference

Center (Room 239), 1919 M Street, NW,

Washington, D.C. The complete text of

this decision may also be purchased

from the Commission’s copy

contractors, International Transcription

Service, Inc., (202) 857–3800, located at

1919 M Street, NW, Room 246, or 2100

M Street, NW, Suite 140, Washington,

D.C. 20037.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of Title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: Secs. 303, 48 Stat., as amended,

1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments underArkansas, is amended

by adding Atkins, Channel 257A.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 95–11821 Filed 5–12–95; 8:45 am]

BILLING CODE 6712–01–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 652

[Docket No. 950126030–5131–02; I.D.

111794A]

Atlantic Surf Clam and Ocean Quahog

Fisheries; 1995 Final Fishing Quotas

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final 1995 fishing quotas for

surf clams and ocean quahogs.

SUMMARY: NMFS issues these final

quotas for the Atlantic surf clam and

ocean quahog fisheries for 1995. These

quotas were selected from a range

defined as optimum yield (OY) for each

fishery. The intent of this action is to

establish allowable harvests of surf

clams and ocean quahogs from the

exclusive economic zone in 1995.

EFFECTIVE DATE: January 1, 1995 to

December 31, 1995.

ADDRESSES: Copies of the Mid-Atlantic

Fishery Management Council’s analysis

and recommendations are available

from David R. Keifer, Executive

Director, Mid-Atlantic Fishery

Management Council, Room 2115,

Federal Building, 300 South New Street,

Dover, DE 19901–6790. Copies of the

Report of the 19th Northeast Regional

Stock Assessment Workshop (19th SAW

Report) are available from Helen

Mustafa, NMFS, Woods Hole

Laboratory, 166 Water Street, Woods

Hole, MA 02543–1097.

FOR FURTHER INFORMATION CONTACT:

Myles Raizin (Resource Policy Analyst)

508–281–9104.

SUPPLEMENTARY INFORMATION: The

Fishery Management Plan for the

Atlantic Surf Clam and Ocean Quahog

Fisheries (FMP) directs NMFS, in

consultation with the Mid-Atlantic

Fishery Management Council (Council),

to specify quotas for surf clams and

ocean quahogs on an annual basis from

an established range of values to

represent the OY for each fishery. It is

the policy of the Council that the levels

selected will allow fishing to continue

at that level for at least 10 years for surf

clams and 30 years for ocean quahogs.

In addition to this constraint, the quotas

are set at a level that meets the

estimated annual demand.

For surf clams, the quota must fall

within the OY range of 1.85 million

bushels (652 thousand hectoliters (hL))

and 3.4 million bushels (1.2 million hL).

For ocean quahogs, the quota must fall

within the OY range of 4 million

bushels (1.4 million hL) to 6 million

bushels (2.1 million hL). These ranges

are specified in 50 CFR 652.21 (a) and

(b) of the regulations.

Final fishing quotas for the 1995

fishing year are: Surf clams—2.565

million bushels (90.4 thousand kiloliters

(kL)); ocean quahogs—4.9 million

bushels (172.7 thousand kL). NMFS has

considered all comments and has

determined that these are the

appropriate quotas, in accordance with

§ 652.21(a)(3) of the regulations. These

quotas are identical to those

recommended by the Council and

published as proposed on February 6,

1995 (60 FR 6977). The public comment

period ended on March 6, 1995.

The 19th Stock Assessment Workshop

(SAW) Report was not available to the

Council when the Council voted on the

proposed quotas for surf clams and

ocean quahogs. That report declared

that both the surf clam and ocean

quahog fisheries were fully exploited

and at medium levels of biomass. The

report also suggested that the surf clam

quota be reduced by 16 percent and the

ocean quahog quota be reduced by

approximately 18 percent from quota

levels set for 1994. This reduction was

necessary to accomplish a 50-percent

probability of achieving the Council’s

supply-year goals. However, despite the

updated management advice, the

Council did not revise its earlier

recommendation of a 10-percent

reduction in the surf clam quota and a

12.5-percent reduction in the ocean

quahog quota.

The quota-setting process for these

fisheries relies upon a high degree of

public participation. Early in the

process, the industry was invited to

attend meetings and discussions where

NMFS scientists presented survey

results and other data on the status of

the fishery. The industry was given

many opportunities to testify or

comment on the Council’s proposals,

and written comments were submitted

during the open comment period

provided after proposed quotas were

published in the Federal Register.

The 1995 surf clam and ocean quahog

specifications are based on the 1992 surf

clam abundance survey, as reported in

the 1993 stock assessment report.

Reliance on the 1992 survey is based on

two factors. First, the 19th SAW report

and the 1994 abundance survey it

contains were not available for the

Council to analyze before the Council

voted initially on proposed

specifications for surf clams and ocean

quahogs for 1995. Second, the NMFS

scientists reported that the 1994 surf

clam abundance survey was a statistical

anomaly and raised serious biological

questions when compared with the

survey data from prior years. The

Director, Northeast Region, NMFS

(Regional Director) agreed and decided

that utilization of the 1994 survey

information was not prudent at this

time. NMFS has accepted comments

based on the 1994 survey, however, and

will consider these comments when the

1994 survey data is reexamined. In

determining the final quota amounts,

NMFS considered the recommendations

of the Council, the findings of the 19th

SAW Report, and concerns regarding

the impact on the public and the

resource. The 19th SAW Report

recommended that the 1995 quota be set

even lower than the Council’s proposed

specifications. However, the Council’s

specifications remain within the range

of estimated supply years. Therefore,

NMFS has concluded that the Council’s

recommendation remains sufficiently
25854 Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Rules and Regulations

prudent and further reductions are not

warranted at this time.

Comments and Responses

Eight sets of comments, which

altogether made nine separate points,

were received on the proposed 1995

quotas of 2.565 million bushels (904

thousand hL) for surf clams and 4.9

million bushels (1.7 million hL) for

ocean quahogs. One commenter favored

the proposed quotas, while eight

commenters were in opposition.

Comment: The refusal of NMFS and

the Council to use results of the 1994

abundance survey to measure the

biomass of surf clams and ocean

quahogs was not consistent with basing

the specifications on the best scientific

information available.

Response: The Stock Assessment

Review Committee (SARC) for the 19th

SAW, comprised of scientists from

NMFS, academia, state facilities, and

staffs of the New England and MidAtlantic Fishery Management Councils,

made the determination not to include

the 1994 abundance survey results in

the stock assessment. Those results were

markedly and scientifically

incompatible with the rest of the timeseries developed from the 19 previous

survey cruises. The 1994 abundance

survey results could not have been

attributable to a major recruitment

event. Since the size-structure of the

clams caught in the 1994 survey was

similar to the size-structure detected in

the previous surveys, evidence of

increased recruitment for at least some

age-classes should have been detected

in the previous surveys. The only

conclusion that can be drawn is that the

capture efficiency of the clam dredge

used in the 1994 survey was higher than

it was in previous years.

Furthermore, the 1994 abundance

survey results alone do not constitute

the best scientific information available.

They represent an anomaly in a very

long time-series of survey results. It

would not be scientifically sound to

accept the 1994 survey results by

assuming that there is a sudden and

dramatic increase for almost every yearclass for both species. These results

need to be scientifically vetted before

they can be used to modify existing

data. The results have not been

discarded. If future survey results

replicate the 1994 survey results, then a

sounder scientific basis would exist for

making an adjustment to the annual

quota.

A number of scientific questions have

been asked regarding the validity of the

1994 dredge survey data. As a result,

NMFS and the Council believe that use

of the 1992 surf clam abundance survey,

as reported in the 1993 stock assessment

report, as the basis for its

recommendations for the annual quotas

for surf clams and ocean quahogs

represents the best scientific

information available at the time.

Comment: Based on the 1992

abundance survey, the Council chose to

assume 9 years of surf clams available

for harvest, when they could have

chosen up to 12 years. The correct

approach would have been to assume

the mean number of years—10.5.

Response: In 1994, in a written report

containing their analyses and

recommendations (see ADDRESSES), the

Council chose to recommend a

conservative approach to protect the

stocks by assuming 9 years of

availability at current harvest levels.

NMFS has accepted this conservative

approach in specifying the 1995 surf

clam quota. The recruitment to this

fishery is at low levels and does not

offset annual removals from the fishery.

Consequently, a high probability exists

that this fishery will be severely

depleted at the end of 10 years. This

means that fishing will be dramatically

curtailed. Concomitantly, the value of

individual transferable quotas may be

severely affected.

The most sound approach is to take

no action that could accelerate the

severe depletion of the fishery. This

necessitates a reasonably conservative

approach to management. If, in the

future, the results of the 1994 survey are

invested with some scientific validity,

or a major recruitment event occurs,

then the Council would have a basis on

which to adopt less conservative quotas.

The 1995 quota specifications do not

even represent the most conservative

quota recommendations for these

fisheries. At present levels of harvest,

the SARC estimates a 50-percent

probability that only a 7-year supply of

surf clams remains in northern New

Jersey and in Delaware, Maryland, and

Virginia (Delmarva). These areas jointly

account for approximately 90 percent of

the harvest. If NMFS were to base the

final quota on this most conservative

estimate, a 16-percent reduction from

the 1994 surf clam quota would be

required for 1995, as opposed to the 10-

percent reduction recommended by the

Council and adopted by NMFS. One

reason for not using the most

conservative estimate is that NMFS

believes that harvest patterns show the

fishery to be moving northward; the

percentage harvested from the Delmarva

and northern New Jersey area may not

comprise 90 percent of the harvest over

the 10-year period. Also, a decrease of

this magnitude may cause severe

disruptions in the markets for surf clams

and surf clam products and adversely

affect the individual transferable quota

market.

In fact, NMFS remains so concerned

for the long-term sustainability of this

resource that the agency may advise the

Council that it should revise these

definitions prior to setting the 1996

quotas. The overfishing definitions for

both surf clams and ocean quahogs, as

contained in the FMP, may be

inadequate to protect the long-term

productivity of these resources.

Comment: The Council ignored

empirical information provided by

fishermen on increased levels of

recruitment and continues to assume a

low level of recruitment in both the surf

clam and ocean quahog fisheries.

Response: There has been conflicting

testimony from fishermen regarding the

level of recruitment in both fisheries.

The fact that the Council did not adopt

the more conservative SARC estimate of

a remaining 7-year surf clam supply, or

the more conservative ocean quahog

quota recommended by the Council staff

(i.e., 4.6 million bushels (1.6 million

hL)), reflects that the Council did take

into account the industry’s testimony

regarding increased recruitment.

Comment: The 1994 survey showed

increases in surf clam recruits per tow

from 13.5 in 1992 to 27.2 in 1994 for

northern New Jersey and from 7.5 in

1992 to 39.2 in 1994 for Delmarva. This

shows significant increases in

recruitment and would constitute the

best scientific information available.

The survey also showed large increases

in recruitment to the ocean quahog

fishery.

Response: The Council and NMFS did

not use the results from the 1994

abundance survey for the reasons

mentioned above. However, if the 1994

survey data were used, the 19th SAW

report calculated that the number of surf

clam recruits relative to all sizes would

comprise 20.9 percent of each tow for

1994, as compared to 20.4 percent in

1992.

For the reasons outlined above, the

1994 survey results for ocean quahog

were also discounted. Annual

recruitment per unit area for ocean

quahogs is very low, as would be

expected for a long-lived bivalve. In the

1994 and previous surveys, there is no

evidence of substantial recruitment in

any region other than the Gulf of Maine.

(From the Advisory Report and

Summary report (p. 182).)

Comment: The report containing the

Council’s analysis and

recommendations concluded that no

significant recruitment occurred in the

surf clam or ocean quahog fisheries.

When the Council and scientists were
Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Rules and Regulations 25855

asked to define ‘‘significant

recruitment,’’ they could not answer.

Response: The answer to the question

‘‘What is significant recruitment?’’ was

not as clear as it might have been.

Basically, two kinds of recruitment

events occur for surf clams—a continual

low level of recruitment and a

substantial recruitment event. The latter

type of event can be characterized as

‘‘significant’’ and last occurred for surf

clams in 1976 and 1977 off the New

Jersey and Delmarva coasts,

respectively. Since then, only a low

level of recruitment has occurred in this

fishery. Current harvest rates in these

areas exceed current stock

replenishment rates due to this steady

low recruitment.

Comment: One commenter offered a

table drawn from the northern New

Jersey DeLury model found in the 19th

SAW report to show that estimated total

biomass of surf clams for the years 1991

through 1994 had not declined at all,

even though estimated recruitment was

approximately 12 percent of the biomass

for each year.

Response: The table provided by the

commenter shows estimated total

biomass decreasing from 91.8 thousand

metric tons (mt) in 1992 to 88.8

thousand mt tons in 1994. Although the

1994 estimate is slightly above the 1991

estimate of 88.5 thousand mt, the

current trend shows estimated total

biomass to be in decline.

Comment: The Council’s analysis

cited in the Federal Register (60 FR

6979, February 6, 1995) states that the

alleged rapid decline in catch per unit

of effort (CPUE) requires the

‘‘conservative selection of a 9-year

remaining surf clam supply.’’ However,

the Council’s Chairman claimed that

declining CPUE was not used neither in

the decision to set 1995 quotas at

current levels nor in taking a

conservative approach to selecting the

remaining surf clam supply. These

statements appear to contradict each

other.

Response: The Council’s report (1995

Surf Clam and Ocean Quahog Quota

Recommendations), containing analysis

and recommendations, states that the

declining CPUE ‘‘suggests’’ a

conservative approach. The report does

not state that the declining CPUE

requires a conservative approach.

However, the Council’s Chairman may

have misspoken in his attempt to

convey the fact that declining CPUE was

only one of many factors considered. In

any event, the record is clear that

declining CPUE was not the sole basis

for the Council’s recommendation.

Comment: One commenter claimed

that the Council’s ‘‘10-year supply’’

formula constitutes a rule that is null

and void, because it was not adopted

through the rulemaking process and

constitutes an unadopted, and therefore

inapplicable, administrative rule.

Response: The Council process gives

interested persons an opportunity to

participate in all aspects of the rule

making process. Through the Council’s

process, the surf clam and ocean quahog

industry had adequate opportunity to

participate in the establishment of the

supply policies. In June 1993, the Surf

Clam and Ocean Quahog Committee and

the Scientific and Statistical Committee

discussed and voted on the surf clam

10-year supply policy, as well as the

ocean quahog 30-year supply policy, in

formally noticed public meetings and

accepted written comments. In the

Council meeting of June 1–3, 1993, the

Council discussed and voted to adopt

the policy. The Council used this policy

as an underlying rationale in setting the

1994 and 1995 quota amounts. These

quota amounts were published pursuant

to Administrative Procedures Act

procedures with advance notice and

opportunity to comment.

Comment: One commenter supported

the proposed specifications, because the

process of specifying quotas has worked

for 18 years and is consistent with the

structure designed by the Magnuson

Act. Historically, the Council and the

industry have worked together to

manage the fishery. The Council has

always carefully weighed all

information on economic, social, and

ecological factors before making quota

recommendations. That strategy rebuilt

our surf clam stocks and has promoted

a healthy industry for many years.

Response: NMFS agrees with the

commenter that a careful weighing of all

information by both the Council and

industry is an important component of

the surf clam and ocean quahog fishery

management strategy.

The final quotas for the 1995 Atlantic

surf clam and ocean quahog fisheries are

as follows:

FINAL 1995 SURF CLAM/OCEAN

QUAHOG QUOTAS

Fishery

1995 final

quotas

(bu)

1995 final

quotas

(kL)

Surf clam ................... 2,565,000 90,390

Ocean quahog .......... 4,900,000 172,700

Classification

This action is authorized by 50 CFR

part 652 and is exempt from review

under E.O. 12866.

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

Dated: May 9, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

[FR Doc. 95–11926 Filed 5–12–95; 8:45 am]

BILLING CODE 3510–22–W