[Federal Register Volume 60, Number 93 (Monday, May 15, 1995)]
[Rules and Regulations]
[Pages 25853-25855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11926]



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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.

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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 Sec. 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 [[Page 25854]] 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 Mid-Atlantic 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 time-series 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 year-class 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 [[Page 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                
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                                                       1995       1995  
                                                      final      final  
                      Fishery                         quotas     quotas 
                                                       (bu)       (kL)  
------------------------------------------------------------------------
Surf clam.........................................  2,565,000     90,390
Ocean quahog......................................  4,900,000    172,700
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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]
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