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Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fishery; Amendment 13 to the Surfclam and Ocean Quahog Fishery Management Plan
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 25, 2003 (Volume 68, Number 186)]
[Proposed Rules]
[Page 55358-55361]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25se03-16]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 030908223-3223-01; I.D. 081403B]
RIN 0648-AP57
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Atlantic
Surfclam and Ocean Quahog Fishery; Amendment 13 to the Surfclam and
Ocean Quahog Fishery Management Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement Amendment 13 to the
Surfclam and Ocean Quahog Fishery Management Plan (FMP). This proposed
rule would establish: A new surfclam overfishing definition; multi-year
fishing quotas; a mandatory vessel monitoring system (VMS), when such a
system is economically viable; the ability to suspend or adjust the
surfclam minimum size limit through a framework adjustment; and an
analysis of fishing gear impacts on Essential Fish Habitat (EFH) for
surfclams and ocean quahogs. The primary purpose of this proposed
action is to rectify the disapproved surfclam overfishing definition
and the EFH analysis and rationale contained in Amendment 12 in order
to comply with the Magnuson-Stevens Fishery Conservation and Management
Act (Magnuson-Stevens Act), and to simplify the regulatory requirements
of the FMP.
DATES: Comments must be received at the appropriate address or fax
number, (See ADDRESSES), on or before 5 p.m., local time, on October
27, 2003.
ADDRESSES: Written comments should be sent to Patricia A. Kurkul,
Regional Administrator, NMFS, Northeast Regional Office, One Blackburn
Drive, Gloucester, MA 01930. Mark the outside of the envelope,
``Comments on Amendment 13 to Atlantic Surfclam and Ocean Quahog
Fishery.'' Comments also may be sent via facsimile (fax) to (978) 281-
9135. Comments will not be accepted if submitted via e-mail or
Internet.
Copies of the FMP, its Regulatory Impact Review (RIR), the Initial
Regulatory Flexibility Analysis (IRFA), and the Final Environmental
Impact Statement (FEIS) are available from Daniel T. Furlong, Executive
Director, Mid-Atlantic Fishery Management Council, 300 S. New Street,
Dover, DE 19904.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Supervisory Fishery
Policy Analyst, 978-281-9252, fax 978-281-9135, Susan.A.Murphy@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
Amendment 12 to the FMP was prepared by the Mid-Atlantic Fishery
Management Council (Council) to bring the FMP into compliance with the
Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of
1996. On April 28, 1999, the Council was notified that NMFS partially
approved Amendment 12. Specifically, two Amendment 12 measures were
disapproved, the surfclam overfishing definition and the analysis and
rationale for the status quo alternative for addressing fishing gear
impacts to EFH. To rectify these disapprovals, the Council prepared,
and NMFS published, a Notice of Intent to Prepare an Environmental
Impact Statement (EIS) in the Federal Register, officially beginning
the Council's scoping process for Amendment 13 (66 FR 13694, March 7,
2001). The Council held a scoping hearing on March 21, 2001, and
accepted scoping comments on the amendment during the period March 7
through April 6, 2001. In addition to the surfclam overfishing
definition and EFH alternatives, other issues identified for inclusion
in the EIS were multi-year quotas, a mandatory VMS requirement and a
permanent suspension of the surfclam minimum size limit. The Council
identified a range of alternatives for each of these five issues and
approved the alternatives in a public hearing document at its May, 2002
meeting. A Notice of Availability (NOA) on the DSEIS was published in
the Federal Register on August 30, 2002 (67 FR 55838), with a comment
period ending October 15, 2002. There were a series of three public
hearings held (one each in the states of Maine, New Jersey and
Delaware). After consideration of all public comments, the Council
chose the following alternatives at its January, 2003 meeting and voted
to submit the Amendment 13 document, including the draft final
supplemental environmental impact statement to NMFS. The Amendment 13
measures contained in this action propose multi-year fishing quotas and
the ability to suspend or adjust the surfclam
[[Page 55359]]
minimum size limit through a framework adjustment. The analysis of
fishing gear impacts on EFH for surfclams and ocean quahogs, a new
surfclam overfishing definition, and a mandatory VMS are not
accompanied by regulatory text because either they are non regulatory
in nature (fishing gear impacts on EFH and the new overfishing
definition) or implementation is deferred (a mandatory VMS
requirement). However, information on these alternatives is presented
in the preamble.
Surfclam Overfishing Definition
The surfclam overfishing definition contained in Amendment 12 was
disapproved because it was based on the sustainability of that portion
of the surfclam stock located in the northern New Jersey area. Although
80 percent of the surfclam fishery has taken place off northern New
Jersey over the past decade, the Amendment 12 surfclam overfishing
definition did not represent the entire resource, as required by
National Standard 3.
The surfclam overfishing definition recommended by the Council is
based on the advice of the 30th Stock Assessment Workshop (SAW 30,
April 2000), which incorporated the results of a research survey that
took place during the summer of 1999. In addition, the proposed
overfishing definition applies to the entire resource, versus focusing
on the northern New Jersey area component of this stock. The proposed
surfclam overfishing definition is as follows: Biomass target
(Btarget) = 1/2 of current biomass (as a proxy for the
biomass level at maximum sustainable yield (Bmsy)); biomass
threshold (Bthreshold) = 1/2 the biomass target; fishing
mortality threshold (Fthreshold) = fishing mortality at
maximum sustainable yield (Fmsy), where the current proxy
for Fmsy is the natural mortality rate for surfclams (M); and the
fishing mortality target (Ftarget) would always be set less
than the Fthreshold and would be equivalent to the fishing mortality
rate (F) associated with the quota selected by the Council.
Fishing Gear Impacts on EFH
The Amendment 12 no action alternative for addressing fishing gear
impacts to EFH for surfclams and ocean quahogs was disapproved because
the rationale and analysis for selecting this preferred alternative was
insufficient. To address this insufficiency, the Council evaluated nine
alternatives to minimize fishing gear impacts to EFH, most of which
focus on closed areas. The relatively recent ``Workshop on the Effects
of Fishing Gear on Marine Habitats off the Northeastern United States''
(Workshop, October 2001) concluded that the effects of hydraulic clam
dredges were limited to sandy substrates, since this type of gear is
not used on muddy or gravel substrates. The Workshop panel also agreed
that hydraulic clam dredges have important habitat effects, but that
only a small area is affected by this type of gear. In summary, the
Workshop panel concluded that because the surfclam fishery is primarily
prosecuted in sandy habitats, its effect is limited to potentially
large, but localized impacts to biological and physical structure.
Furthermore, because the recovery time is relatively short for this
high energy environment, the impacts can be considered temporary. In
addition, because these impacts potentially affect a relatively small
portion (approximately 100 square nautical miles) of the overall large
uniform area of high energy sand along the continental shelf, they can
be considered minimal. The Workshop panel also indicated that other
measures, such as reductions in effort or gear modifications, are not
practicable. Thus, based on information from the Workshop, NMFS
proposes that no action be taken at this time to mitigate fishing gear
impacts on EFH.
Multi-year Quotas
This proposed rule would replace the current annual specification
process with a process that would allow the Council to establish
specifications to be in effect for up to three fishing years, provided
that an annual evaluation of the surfclam and ocean quahog status is
undertaken. This multi-year specification process would allow the
Council and NMFS to be more efficient by streamlining the regulatory
process, and would provide the industry with greater regulatory
consistency and predictability. The intent of this provision is to make
the 3-year maximum quota setting process coincide with the Northeast
Fisheries Science Center's clam survey and subsequent stock assessment,
which occur approximately every 3 years. This would provide the Council
with the most recent scientific information available in setting the
specifications for these two species. However, the maximum three-year
specification process is not meant to curtail the Council from setting
specifications during the interim years if information obtained during
the annual review indicates that the surfclam and ocean quahog
specifications warrant a change, e.g., to comply fully with the
Magnuson-Stevens Act.
Mandatory VMS
Amendment 13, if approved, would authorize NMFS to implement a
mandatory VMS requirement based on analysis provided by the Council. At
that time, the Council would submit to NMFS the applicable paperwork to
conform with the Paperwork Reduction Act, and submit a full economic
analysis pertaining to this new requirement. Once these Council
submissions are complete, NMFS will publish a proposed rule. The
Council intends that such a program would be implemented through three
phases as follows: (1) VMS notification to replace the existing
surfclam/ocean quahog call-in system; (2) electronic vessel reporting
that would replace the existing vessel logbook; and (3) collection of
scientific information on a tow-by-tow basis. In addition, the Council
could decide to monitor closed areas to better aid enforcement.
However, this would be done independently of the other three phases.
Frameworkable Measures
Finally, this proposed rule would add to the list of frameworkable
management measures the ability to suspend or adjust the surfclam
minimum size limit. Currently, NMFS conducts an annual analysis to
determine if discards or survey data indicate that 30 percent of the
surfclams are smaller then 4.75 in (12.06 cm). If it is determined that
30 percent of the surfclams are not smaller than 4.75 in (12.06 cm),
NMFS publishes a notice in the Federal Register to suspend the surfclam
minimum size limit. This suspension has been done every year since the
implementation of the individual transferable quota program in 1990.
However, due to concerns expressed by some industry members, as well as
Council concern that it may be more difficult to implement a change
rather than to suspend a current provision, the Council voted to
maintain the no action alternative and add to the list of frameworkable
management measures the ability to suspend or to adjust the surfclam
minimum size limit.
Classification
At this time, NMFS has not determined that the Amendment, which
this proposed rule would implement, is consistent with the national
standards of the Magnuson-Stevens Act and other applicable laws. NMFS,
in making that determination, will take into account the data, views,
and comments received during the comment period.
[[Page 55360]]
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The Council prepared an initial regulatory flexibility analysis
(IRFA) as required by section 603 of the Regulatory Flexibility Act.
Additionally, the Council in cooperation with NMFS prepared a
supplement to the IRFA. The IRFA describes the economic impact that
this proposed rule, if adopted, would have on small entities. A summary
of the analysis follows:
A description of the reasons why this action is being considered,
and the objectives and legal basis of this proposed rule are contained
in the SUMMARY and in the SUPPLEMENTARY INFORMATION of this proposed
rule and are not repeated here. There are no recordkeeping, reporting,
or other compliance costs resulting from this action. It would not
duplicate, overlap, or conflict with any other Federal rules.
All of the affected businesses (fishing vessels) are considered
small entities under the standards described by the Small Business
Administration because they have annual returns (revenues) that do not
exceed $3.5 million annually.
The economic impacts of actions were analyzed by employing
quantitative approaches to the extent possible. When appropriate data
was lacking, or the action was administrative in nature, a qualitative
approach was employed. Effects on profitability associated with the
proposed management measures should be evaluated by looking at the
impact the proposed measures would have on individual vessel costs and
revenues. However, in the absence of cost data for individual vessels
engaged in these fisheries, changes in gross revenues are used as a
proxy for profitability.
In 2003, there were 1590 vessels that held permits in the surf clam
fishery and 1602 that held permits in the ocean quahog fishery. Of
these vessels, 1590 held both the ocean quahog and surf clam permit
simultaneously. The proposed action could affect any vessel holding an
active Federal permit for either species. However, the commercial use
of the permit is limited to vessels fishing under an individual fishing
quota or fishing in the Maine mahogany quahog fisery. In 2001, there
were 51 vessels that landed either surfclams (21 vessels), ocean
quahogs (16 vessels), or both (14 vessels). There were 31 vessels in
2001 that fished under the Federal limited access Maine mahogany quahog
permit for Maine ocean quahogs.
Management measures contained in this proposed rule would establish
multi-year quotas and add the suspension of the surfclam minimum size
limit and adjustment of the minimum size to the list of frameworkable
measures under the FMP.
None of the proposed management measures in this rule would result
in a substantial change in revenues or profitability of vessels
comprising these fisheries. Although additional alternatives were
considered for these management measures, the preferred alternative
would minimize economic impacts to the greatest extent possible.
The proposal to revise the overfishing definition for surfclams
does not alter the optimum yield of the fishery, a basis for
determining annual quotas, and does not directly impact gross revenues.
Therefore, no change to gross revenues is expected from this revision.
However, an initial regulatory flexibility analysis must be prepared at
the times when quotas or other management measures that control
landings are proposed. The Council considered three alternative
overfishing definitions, none of which would meet the requirements of
National Standard 1 of the Magnuson-Stevens Act. As in the case of the
preferred alternative, none of these alternatives would directly affect
the profitability of individual vessels.
The proposal to establish multi-year quotas and frameworkable
minimum size limits and adjustments for surfclams are administrative
and will not directly impact gross revenues. However, the Council will
be required to prepare an initial regulatory flexibility analysis for
each quota set by the Council and for each surfclam minimum size limit
adjustment, if applicable.
The Council considered two alternatives to the multi-year quota
measure including the status quo and an alternative that would set
multi-year quotas without annual review. The Council also considered
two alternatives to the minimum size limits and adjustments including
the status quo and an alternative to adjust minimum sizes when the
multi-year decisions occur. All alternatives are purely administrative
in nature. However, as explained above, any changes to annual quotas or
adjustments to surfclam minimum size that could result from any
alternatives considered would require, subject to the preparation of a
proposed rule, preparation of regulatory flexibility analyses at that
time.
The Council is planning to establish a vessel monitoring program at
a later point in time since the implementation of a system is dependent
upon the determination by the Regional Administrator of an economically
viable monitoring system. If and when the Regional Administrator
determines that an economically viable monitoring system is achievable,
the Council must prepare an initial regulatory flexibility analysis
that fully examines the compliance costs associated with that system. A
mandatory VMS requirement would be implemented through proposed and
final rulemaking by a regulatory amendment.
The Council proposes no change to existing management measures to
address fishing gear impacts on EFH at this time. Therefore, there are
no impacts on vessel gross revenues resulting from this aspect of
Amendment 13. However, the Council analyzed potential closures of three
areas as alternatives to the no action measure including a closing of
the Georges Bank Area, the Southern New England East Area, and the
Habitat Area of Particular Concern (HAPC) for Tilefish. For Georges
Bank, there would be no economic impact to vessels since this area has
been closed to fishing for surfclams and ocean quahogs for over ten
years. Accordingly, no landings have been recorded from that area
during the closure time. For Southern New England, the Council
concluded that there would be minimally negative economic impacts to
surf clam vessels. However, there could be substantially negative
economic impacts to ocean quahog vessels. A closure in the Southern New
England area would most likely affect surf clam and ocean quahog
vessels fishing out of Massachusetts and Rhode Island since increased
fuel costs needed to steam to another fishable area coupled with
reduced gross revenue could reduce vessel profitability. The Council
estimated that this closure would reduce gross revenues for quahog
vessels by $1,065 per trip and for surfclam vessels by $2 per trip. The
Council determined that the closure of the Tilefish HAPC could result
in the largest negative impact to quahog vessels, with a loss in gross
revenues of $2,637 per trip and a loss in profitability to surfclam
vessels of $71 per trip. However, economic impacts from the closure of
Tilefish HAPC are likely to be grossly overestimated relative to the
actual area that would be specified in any regulations. The impacts are
more a function of creating complete 10-minute squares for closures and
attempting to minimize the jagged nature of the 250-ft (76.2-m)
bathymetric contour. Based purely on sediment preference, it is
unlikely ocean quahogs and tilefish would coexist in concentrated
areas.
The analysis in the IRFA indicates that there are no significant
alternatives considered that would minimize
[[Page 55361]]
adverse economic impacts or increase economic benefits relative to the
proposed management measures contained in this proposed rule.
List of Subjects in 50 CFR Part 648
Fishing, Fisheries, Reporting and recordkeeping requirements.
Dated: September 17, 2003.
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. Section 648.71 is revised to read 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 three-year period by the
Regional Administrator on or about December 1, 2004. 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 on or
about December 1 of 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).
(1) Quota reports. On an annual basis, MAFMC staff will produce an
Atlantic surfclam and ocean quahog annual quota recommendation paper to
the MAFMC based on the latest available stock assessment report
prepared by NMFS, data reported by harvesters and processors, and other
relevant data as well as the information contained in paragraphs
(a)(1)(i) thru (vi) of this section. Based on that report, and at least
once prior to August 15 of the year in which a three year annual quota
specification expires, the MAFMC, following an opportunity for public
comment, will recommend to the Regional Administrator annual quotas and
estimates of DAH and DAP within the ranges specified for a three year
period. In selecting the annual quotas, the MAFMC shall consider the
current stock assessments, catch reports, and other relevant
information concerning:
(i) Exploitable and spawning biomass relative to the OY.
(ii) Fishing mortality rates relative to the OY.
(iii) Magnitude of incoming recruitment.
(iv) Projected effort and corresponding catches.
(v) Geographical distribution of the catch relative to the
geographical distribution of the resource.
(vi) Status of areas previously closed to surfclam fishing that are
to be opened during the year and areas likely to be closed to fishing
during the year.
(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 on or about December 1 of 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 Act and
the objectives of the Atlantic Surfclam and Ocean Quahog FMP and other
applicable law.
(b) Interim quota modifications. Based upon information presented
in the quota reports described in paragraph (a)(1), the MAFMC may
recommend to the Regional Administrator a modification to the annual
quotas that have been specified for a 3-year period and any estimate of
DAH or DAP made in conjunction with such specifications within the
ranges specified in paragraph (a)(1) of this section. Based upon the
Council's recommendation, the Regional Administrator may propose
surfclam and or ocean quahog quotas that differ from the annual quotas
specified for the current 3-year period. Such modification shall be in
effect for a period of 3 years from the year in which it is first
implemented unless further modified. Any interim modification shall
follow the same procedures for establishing the annual quotas that are
specified for a 3-year period.
(c) The previous year's annual quotas for surfclams and ocean
quahogs and three-year specifications will remain effective unless
revised pursuant to this section. NMFS will issue notification in the
Federal Register if the previous year's specifications will not be
changed.
3. In Sec. 648.77, paragraph (a)(1) is revised to read as follows:
Sec. 648.77 Framework adjustments to management measures.
(a) * * *
(1) Adjustment process. The Council shall develop and analyze
appropriate management actions over the span of at least two Council
meetings. The Council must provide the public with advance notice of
the availability of the recommendation(s), appropriate justification(s)
and economic and biological analyses, and the opportunity to comment on
the proposed adjustment(s) at the first meeting, and prior to and at
the second Council meeting. The Council's recommendations on
adjustments or additions to management measures must come from one or
more of the following categories: The overfishing definition (both the
threshold and target levels), description and identification of EFH
(and fishing gear management measures that impact EFH), habitat areas
of particular concern, set aside quota for scientific research, vessel
tracking system, optimum yield range, and suspension or adjustment of
the surfclam minimum size limit.
* * * * *
[FR Doc. 03-24250 Filed 9-24-03; 8:45 am]
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