[Federal Register Volume 78, Number 245 (Friday, December 20, 2013)]
[Rules and Regulations]
[Pages 77005-77008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30313]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130904778-3999-02]
RIN 0648-XC855

Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Surfclam and Ocean Quahog Fishery; 2014-2016 Fishing Quotas

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

ACTION: Final rule.


SUMMARY: This final rule implements the commercial quotas for the 
Atlantic surfclam and ocean quahog fisheries for 2014, 2015, and 2016. 
The quotas are unchanged from the quotas for the 2011, 2012, and 2013 
fishing years. This action sets allowable harvest levels of Atlantic 
surfclams and ocean quahogs, prevents overfishing, and allows 
harvesting of optimum yield. This action also continues to suspend the 
minimum shell size for Atlantic surfclams for the 2014 fishing year.

DATES: This rule is effective December 20, 2013.

ADDRESSES: A copy of the Environmental Assessment prepared for this 
action is available upon request from the Mid-Atlantic Fishery 
Management (Council), 800 North State Street, Suite 201, Dover, DE 

FOR FURTHER INFORMATION CONTACT: Jason Berthiaume, Fishery Management 
Specialist, 978-281-9177.

SUPPLEMENTARY INFORMATION: The Atlantic Surfclam and Ocean Quahog 
Fishery Management Plan (FMP) requires that NMFS, in consultation with 
the Council, specify quotas for surfclam and ocean quahog for a 3-yr 
period, with an annual review, 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 yrs for surfclams, and 30 yrs for ocean quahogs. 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[deg]50[min] N. 
lat., with an annual quota within a range of 17,000 to 100,000 Maine 
bushels (bu) (0.6 to 3.524 million L). 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. The Council annually reviews the 
quota to determine whether 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 and other relevant 
scientific information.
    In June 2013, the Council voted to recommend maintaining the 2013 
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

[[Page 77006]]

Maine bu (3.524 million L) for the Maine ocean quahog fishery for 2014-
2016. The quotas for the 2014-2016 Atlantic surfclam and ocean quahog 
fishery are shown in the table below.

                            Final 2014-2016 Atlantic Surfclam and Ocean Quahog Quotas
                                                  Ocean Quahog
        Year                   ABC                    ACL                    ACT              Commercial quota
2014-2016...........  5.7 million bu (306    5.7 million bu (306    Maine ACT: 105,010     Maine Quota: 100,000
                       million L).            million L).            Maine bu (3.7          Maine bu (3.524
                                                                     million L).            million L).
                                                                    Non-Maine ACT: 5.56    Non-Maine Quota: 5.3
                                                                     million bu (298        million bu (284
                                                                     million L).            million L).

                                                Atlantic Surfclam
                       Allowable Biological    Annual Catch Limit    Annual Catch Target
        Year               Catch (ABC)               (ACL)                  (ACT)             Commercial quota
2014................  7.8 million bu (415    7.8 million bu (415    3.8 million bu (202    3.4 million bu (181
                       million L).            million L).            million L).            million L).
2015................  6.7 million bu (202    6.7 million bu (202    3.8 million bu (202    3.4 million bu (181
                       million L).            million L).            million L).            million L).
2016................  6.2 million bu (188    6.2 million bu (188    3.8 million bu (115    3.4 million bu (115
                       million L).            million L).            million L).            million L).

    The Atlantic surfclam and ocean quahog quotas are specified in 
``industry'' bushels of 53.24 L per bushel, while the Maine 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.


    In 1999, the Council expressed its intention to increase the 
surfclam quota to OY over a period of 5 yrs (OY = 3.4 million bu (181 
million L)). The proposed 2014-2016 status quo surfclam quota was 
developed after reviewing the results of the Northeast Regional Stock 
Assessment Workshop (SAW) 56 for Atlantic surfclam, released to the 
public in 2013. The surfclam quota recommendation is consistent with 
the SAW 56 finding that the Atlantic surfclam stock is not overfished, 
nor is overfishing occurring. Based on this information, the Council 
recommended, and NMFS maintains, the status quo surfclam quota of 3.4 
million bu (181 million L) for 2014-2016. This quota represents the 
maximum allowable quota under the FMP.

Ocean Quahogs

    In April 2013, the ocean quahog stock assessment was updated and 
found that the ocean quahog stock is not overfished, nor is overfishing 
occurring. Ocean quahog is a low productivity stock that is being 
fished down from its pre-fishery level; however, after several decades 
of relatively low fishing mortality, the stock is still above the 
biomass target reference points. This action maintains the status quo 
quota of 5.333 million bu (284 million L) for 2014-2016.
    The 2014-2016 quota for Maine ocean quahogs is the status quo level 
of 100,000 Maine bu (3.524 million L). In 2008, the State of Maine 
completed a stock assessment of the resource within the Maine Mahogany 
Quahog Zone. The findings of the Maine quahog survey did not change the 
status of the entire ocean quahog resource. The quotas represent the 
maximum allowable quota under the FMP.


    We received six comments on the proposed rule; five from members of 
the Atlantic surfclam and ocean quahog industry and one from the 
general public. All comments supported the quotas in the proposed rule.

Changes From Proposed Rule to Final Rule

    There are no changes from the proposed to final rule.


    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator for Fisheries, NOAA, has determined that this 
final rule is consistent with the Atlantic Surfclam and Ocean Quahog 
FMP, other provisions of the Magnuson-Stevens Act, and other applicable 
    NMFS finds good cause to waive the 30-day delay in effectiveness 
period for this action. A delay in the effective date of this final 
rule would disrupt the surfclam and ocean quahog fisheries and would 
also likely cause substantial confusion and raise administrative 
issues. There is no rollover provision in the surfclam and ocean quahog 
fisheries; therefore, if the specifications are not in place by the 
start of the fishing year on January 1, 2014, the following would 
result: (1) No 2014-2016 proposed specifications for these fisheries 
would be published; (2) the indefinite management measures for each of 
these species would remain unchanged; (3) there would be no specific 
cap on the allowable annual catch (i.e., annual catch limits) and 
landings in each of these fisheries (i.e., no commercial quotas), and 
(4) individual transferable quota (ITQ) tags would be issued to owners 
in 2014-2016 (however, these tags would technically have no meaning as 
the specifications would not be set).
    Further, because there is no rollover provision, the only 
regulatory controls on fishing effort and harvests would be the 
indefinite measures. These include Sec.  648.14(j), which states that 
``It is unlawful for any person to do any of the following: Land or 
possess any surfclams or ocean quahogs harvested in or from the EEZ 
without having been issued, or in excess of, an individual 
allocation.'' Because it prohibits landing or possessing surflcams or 
ocean quahogs, Sec.  648.14(j), could effectively prohibit the fishery 
from operating, if quotas were not in place for January 1, 2014. Note 
that this provision is at odds with Sec.  648.75(b), which requires 
NMFS to issue tags to ITQ allocation holders prior to the fishing year. 
Therefore, if NMFS does not waive the delay in effectiveness, NMFS will 
have already

[[Page 77007]]

provided ITQ allocation holders with their allocation information and 
tags that would otherwise allow them to fish, but without quotas being 
    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 each year. 
As discussed above, fishing for surfclams and ocean quahogs can 
potentially begin on January 1, each year, regardless of the 
publication of the annual quota, as the tags are issued each year prior 
to January 1, pursuant to Sec.  648.75(b). As such, waiving the 30-day 
delay in effectiveness would ensure that the quota for surfclams and 
ocean quahogs is in place for January 1, 2014, thus preventing any 
conflicts between these regulations. On the contrary, not waiving the 
30-day delay in effectiveness would result in tags being issued, with 
no associated value, as the quotas would not be in place.
    Lastly, ITQ allocations are often transferred, either permanently 
or temporarily, immediately upon the commencement of the fishing year 
to meet adjust to any new circumstances in the fishery. Without a quota 
in effect, the industry does not have the ability to transfer 
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 that facilitate the transfer of quotas requested by the 
    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. Also, not having quotas in effect would cause 
substantial confusion and could raise legal and enforcement issues, 
since fishery participants would already have their ITQ allocation 
tags, but the tags would technically not have any meaning as the 
specifications would not have been set. Therefore, it is necessary to 
waive the 30-day delay in effectiveness, as a delay in effectiveness 
would compromise the start of the fishing year and thereby undermine 
the intent of this rule, contrary to the public's interest.
    This final rule is exempt from the requirements of E.O. 12866.
    The Council prepared an EA for this action that analyzes the 
impacts of this rule. A copy of the EA is available from the Federal e-
Rulemaking portal www.regulations.gov. Type ``NOAA-NMFS-2013-0139'' in 
the ID field and click search. A copy of the EA is also available upon 
request from the Council (see ADDRESSES).
    A final regulatory flexibility analysis (FRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RSA). The 
FRFA describes the economic impacts this final rule would have on small 
entities. The FRFA incorporates the IRFA, the RIR, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, NMFS' responses to those comments, and a summary of the analyses 
completed to support the action. A copy of the IRFA 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 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 Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS received no comments relative to the IRFA or economic impacts 
of the proposed 2014-2016 specifications for the Atlantic surfclam and 
ocean quahog fisheries. No changes were made from the proposed to final 

Description and Estimate of the Number of Small Entities to Which This 
Final Rule Would Apply

    The final measures would only affect vessels holding an active 
Federal open access surfclam and/or ocean quahog permit. The SBA 
defines a small commercial shellfish fishing entity as a firm with 
gross annual receipts not exceeding $5 million. In 2012, 42 vessels 
reported harvesting surfclams and/or ocean quahogs from Federal waters 
under the IFQ system. In addition, 12 vessels participated in the 
limited access Maine ocean quahog fishery, for a total of 54 
participants in 2012. Average 2012 gross income was $950,000 per 
vessel. Each vessel in this analysis is treated as a single entity for 
purposes of size determination and impact assessment. All 54 commercial 
fishing entities fall below the SBA size threshold for small commercial 
shellfish fishing entities.

Reporting and Recordkeeping 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 Taken To Minimize Economic Impact on Small 

    The final quotas for 2014-2016 reflect the same quota levels set 
for 2011-2013. Therefore, it is not expected that there will be any 
different economic impacts beyond status quo resulting from the quotas. 
Leaving the ocean quahog quota at the harvest level of 5.333 million bu 
(284 million L) is not expected to constrain the fishery. The surfclam 
quota is set to the maximum allowed under the FMP of 3.4 million bu 
(181 million L).
    The Maine ocean quahog quota is set at the maximum allowed under 
the FMP of 100,000 Maine bu (3.524 million L). 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 yrs.
    Alternatives to these status quo quotas were considered, but were 
not adopted. The alternatives would have resulted in more restrictive 
quotas and would not have been in the best interest of the fishery. In 
addition, the Council and the industry both support the status quo 
quotas being adopted in this action. As a result, since the non-
selected alternatives would have resulted in a negative impacts to 
fisheries and would have been contrary to achieving optimum yield, 
while preventing overfishing, the alternatives were not adopted.
Minimum Size Suspension for Atlantic Surfclams
    The minimum size limit for surfclams has been suspended since 2005. 
Therefore, because this action would not impose a minimum size limit, 
and because no net change in fishing effort, participation in the 
fishery, or fishery expenses are expected, it is anticipated that this 
action would not impose any additional costs on the industry. In fact, 
continuing to suspend the minimum size limit would likely have positive 
economic affects in contrast to not suspending the minimum size limit, 
as not suspending the minimum size limit would likely reduce vessel 

[[Page 77008]]

through time spent measuring and culling small surfclams.

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 make to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued either a surfclam or ocean quahog 
permit, as well as surfclam and ocean quahog dealers. In addition, 
copies of this final rule and guide (i.e., bulletin) are available from 
the Regional Administrator (see ADDRESSES) and may be found at the 
following Web site: www.nero.noaa.gov.

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

    Dated: December 16, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-30313 Filed 12-19-13; 8:45 am]