[Federal Register Volume 63, Number 96 (Tuesday, May 19, 1998)]
[Rules and Regulations]
[Pages 27481-27485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13284]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 648
[Docket No. 980212038-8117-02; I.D. 020298A]
RIN 0648-AF41
Fisheries of the Northeastern United States; Amendment 10 to the
Fishery Management Plan for the Atlantic Surf Clam and Ocean Quahog
Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notice of suspension of notification requirements
for Maine mahogany quahog vessels.
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SUMMARY: NMFS issues this final rule implementing Amendment 10 to the
Fishery Management Plan for the Atlantic Surf Clam and Ocean Quahog
Fisheries (FMP). Amendment 10 establishes management measures for
[[Page 27482]]
the fishery for small ocean quahogs (mahogany quahogs), which occurs
off the coast of Maine, north of 43 deg.50' N. lat.
NMFS announces that, as authorized in Amendment 10, the
notification (call-in) requirements for vessels fishing under a Maine
mahogany quahog permit are suspended.
DATES: Effective on May 21, 1998.
ADDRESSES: Copies of Amendment 10 and its supporting documents,
including the environmental assessment and the regulatory impact
review, are available from Dr. Chris Moore, Acting Executive Director,
Mid-Atlantic Fishery Management Council (Council), Room 2115 Federal
Building, 300 S. New Street, Dover, DE 19904-6790.
Comments regarding burden-hour estimates for collection-of-
information requirements contained in this final rule should be sent to
Dr. Andrew A. Rosenberg, Regional Administrator, 1 Blackburn Drive,
Gloucester, MA 01930, and the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Washington, D.C. 20502
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst,
978-281-9104.
SUPPLEMENTARY INFORMATION:
Background
A notice of availability of Amendment 10 was published in the
Federal Register on February 9, 1998 (63 FR 6510), with the comment
period ending April 10, 1998. A proposed rule to implement Amendment 10
was published in the Federal Register on February 26, 1998 (63 FR
9771), with the comment period ending April 13, 1998. All comments
received by the end of the comment period on the proposed amendment,
whether specifically directed to Amendment 10 or to the proposed rule,
were considered in making the decision to approve the amendment.
Details concerning the justification and development of Amendment 10
were provided in the preamble to the proposed rule and are not repeated
here.
Amendment 10: (1) Establishes a Maine mahogany quahog management
zone north of 43 deg.50' N. lat. (zone); (2) establishes a Maine
mahogany quahog permit; (3) establishes an initial annual quota of
100,000 Maine bushels (35,150 hectoliters (hL)); (4) requires the
Council to establish a Maine Mahogany Quahog Advisory Panel to make
management recommendations; (5) allows for the revision of the annual
quota within a range of 17,000 to 100,000 Maine bushels (5,975 to
35,150 hL); (6) requires vessels harvesting ocean quahogs from the zone
to fish only in areas that have been certified by the State of Maine to
be within the requirements of the National Shellfish Sanitation Program
and adopted by the Interstate Shellfish Sanitation Conference (ISSC) as
acceptable limits for the toxin responsible for paralytic shellfish
poisoning (PSP); (7) requires vessels fishing under a Maine mahogany
quahog permit to land ocean quahogs in Maine; (8) requires vessels
fishing in the zone under an individual transferable quota (ITQ) and
landing their catch outside Maine to land at a facility participating
in an overall food safety program operated by the official state agency
having jurisdiction that utilizes food safety-based procedures
including sampling and analyzing for PSP toxin consistent with those
food safety-based procedures used by the State of Maine for such
purpose; and (9) gives the Administrator, Northeast Region, NMFS
(Regional Administrator) the authority to suspend the existing vessel
notification requirements for vessels possessing a Maine mahogany
quahog permit and fishing in the zone, if he determines it is not
necessary for enforcement.
In addition to these management measures, all vessel owners
prosecuting the Maine mahogany quahog fishery must continue to abide by
the vessel owner and dealer reporting and recordkeeping requirements
set forth in 50 CFR part 648.
Comments and Responses
Twenty-six comments were received during the comment periods on
Amendment 10 and the proposed rule. This includes 21 commenters who
submitted identical letters. Twenty-five commenters supported the
amendment and one was opposed, though several requested modification of
specific measures. Twenty-five commenters raised concerns regarding the
replacement provisions.
Comment 1: The Commissioner of the Maine Department of Marine
Resources (Commissioner) commented that the initial quota of 100,000
Maine bushels (35,150 hL) and its potential subsequent adjustment of
between 17,000 and 100,000 Maine bushels (5,975 and 35,150 hL) is
somewhat arbitrary because it is based solely upon historical landings.
Quota calculations based upon sustainable yields, independent from the
initial quota, are encouraged by the amendment but may be in excess of
100,000 or less than 17,000 Maine bushels. The Commissioner asks that
the regulations be modified so that the quota can be adjusted beyond
the amounts specified.
Response: As explained in Amendment 10, a reliable survey of
abundance has not been conducted for the Maine stock of mahogany
quahogs. Historical landings information based on NMFS and State of
Maine records comprise the best scientific information available to set
quotas, consistent with national standard 2 of the Magnuson-Stevens Act
Fishery Conservation and Management Act (Magnuson-Stevens Act). Such
historical data are not arbitrary. Amendment 10 notes that a stock
assessment could result in the modification of the quota range and that
such a modification would have to be made by a subsequent amendment to
Amendment 10. NMFS has no authority to make such a change prior to that
amendment process.
Comment 2: Industry participants and the Commissioner commented
that the vessel replacement provisions in the proposed rule are in
violation of national standards 5, 6, and 10 of the Magnuson-Stevens
Act. The industry participants noted that they should have the right to
upgrade their vessels to meet changing needs.
Response: NMFS notes that various restrictions on vessel
replacement are in effect for nearly all the limited entry fisheries
managed under authority of the Magnuson-Stevens Act. In regard to
national standard 5, which requires that management measures consider
economic efficiency where practicable, the commenters may be correct in
assuming that certain vessel owners would increase the economic
efficiency of their vessels by replacing them with larger ones, though
in a small-scale fishery such as this there may be limits to the
improvements. However, limits on increases in vessel length, tonnage,
and horsepower are implemented to protect fish stocks by indirectly
controlling fishing capacity.
National standard 6 requires that management measures take into
account and allow for variations among, and contingencies in,
fisheries, fishery resources, and catches. Amendment 10 achieves this
through establishing an annual quota-setting mechanism. The amendment
sets a maximum initial quota consistent with historical landings. Quota
increases can occur once accurate biomass estimates are produced. Quota
decreases from the maximum 100,000 bushel initial quota can occur
annually based on the advice of the Maine Ocean Quahog Advisory Panel
through the Surf Clam and Ocean Quahog Committee. Variations among, and
contingencies in, both the resource and catches could result in annual
[[Page 27483]]
changes to the frameworked maximum annual quota, or result in
initiation of the amendment process.
National standard 10 requires that management measures promote the
safety of human life at sea. The commenter's assertion that larger
vessels are safer is not necessarily true. Safety is more of the
seaworthiness function of a vessel than its size.
While the measure has been approved, NMFS remains concerned about
the provision concerning future replacement of a vessel issued a Maine
mahogany quahog permit. NMFS noted that the measure is inconsistent
with similar measures in other fishery management plans in the region,
including recent plans enacted by the Council for the black sea bass
and summer flounder fisheries. NMFS believes this issue will be
resolved by the amendment the Mid-Atlantic and New England Fishery
Management Councils have begun to develop to standardize these
requirements.
Comment 3: One industry participant suggested that the size of the
Maine bushel should be equal to that of the standard clam bushel used
in the Mid-Atlantic region.
Response: The Maine mahogany fishery has historically utilized a
bushel measuring 1.2445 cubic feet in volume, smaller than the standard
clam bushel, which measure 1.8800 cubic feet in volume. NMFS sees no
need to make this change and believes it could create confusion in the
industry and undermine the accuracy of monitoring and reporting
efforts.
Comment 4: One commenter believes that harvest by State of Maine
licensed vessels in State waters should not count against the 100,000
Maine bushel initial quota.
Response: NMFS notes that the initial quota of 100,000 Maine
bushels is based upon historical landings from both State of Maine and
Federal waters. Therefore, landings from both State and Federal waters
must be counted against the quota. Several fishery management plans,
such as those for Summer Flounder and Scup use an aggregate of state
and Federal landings in establishing and monitoring annual quotas.
Comment 5: Twenty-three commenters, including the Commissioner,
requested the suspension of the trip notification requirements in the
final rule.
Response: As authorized by Amendment 10, the Regional Administrator
has suspended the notification requirement for the Maine mahogany
quahog fishery.
Suspension of Notification Requirements
The Regional Administrator, pursuant to 50 CFR 648.15(b)(4), may
suspend the trip notification requirements found at 50 CFR 648.15
(b)(1) and (2) for vessels issued a Maine mahogany quahog permit
fishing within the zone if it is not deemed necessary for enforcement.
Based on advice from NMFS Law Enforcement, the Regional Administrator
has suspended these notification requirements. If NMFS Law Enforcement
advises in the future that such notification is necessary to enforce
effectively the management measures in the Maine mahogany quahog zone,
the Regional Administrator advises that the notification requirements
will be re-established for the fishery as specified in the final rule.
The vessel notification requirements remain in effect for vessels
fishing under an ITQ allocation permit irrespective of area fished.
Classification
The Regional Administrator determined that Amendment 10 is
necessary for the conservation and management of the Maine mahogany
quahog fishery and that it is consistent with the Magnuson-Stevens Act
and other applicable laws.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA). The collection of this
information has been approved by the Office of Management and Budget,
OMB Control Number 0648-0202. Public reporting burden for these
collections-of-information is estimated to average 30 minutes for a new
vessel permit, 30 minutes for an appeal, and 15 minutes for a renewal
application for a permit. The estimated response time includes the time
needed for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection-of-information. Send comments regarding these burden
estimates or any other aspect of the data requirements, including
suggestions for reducing the burden to NMFS and OMB (see ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.
When this rule was proposed, the Assistant General Counsel for
Legislation and Regulation of the Department of Commerce certified to
the Chief Counsel for Advocacy of the Small Business Administration
that this rule would not have a significant economic impact on a
substantial number of small entities. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not prepared.
Amendment 10 relieves several restrictions for participants in the
Maine mahogany quahog fishery. These include the use of 32-bushel cages
to offload quahogs and the placement of tags on cages to indicate that
the harvest is counted toward the appropriate individual allocation. In
particular, the requirement to use 32-bushel cages is infeasible for
the smaller Maine mahogany quahog vessel and docks due to the cage
size. In addition, mahogany quahog vessels harvest on a small scale,
and it is inappropriately restrictive to use a 32-bushel container to
measure landings.
The implementation of Amendment 10 regulations will relieve an
economic restriction for approximately 68 vessels, which will no longer
be subject to requirements under the FMP. Accordingly, under 5 U.S.C.
553(d)(1), it is not subject to a 30-day delay in effective date.
However, since many vessel owners that comprise the fishery will
require additional time to obtain the moratorium permit, NMFS makes
this rule effective May 21, 1998.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 13, 1998.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble 15 CFR chapter IX and 50
CFR chapter VI are amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENT UNDER THE
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, in paragraph (b), the table is amended by adding,
in
[[Page 27484]]
numerical order, the following entry to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part section where the information (all numbers Begin with 0648-
collection requirement is located ).
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50 CFR
648.76.................................... -0202
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50 CFR CHAPTER VI
PART 648--FISHERIES OF NORTHEASTERN UNITED STATES
3. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. In Sec. 648.2, definitions for ``Maine bushel'' and ``Maine
mahogany quahog zone'' are added in alphabetical order to read as
follows:
Sec. 648.2 Definitions.
* * * * *
Maine bushel means a standard unit of volumetric measurement equal
to 1.2445 cubic feet (35.24 L) of ocean quahogs in the shell.
Maine mahogany quahog zone means the area bounded on the east by
the U.S.-Canada maritime boundary, on the south by a straight line at
43 deg.50' N. latitude, and on the north and west by the shoreline of
Maine.
* * * * *
5. In Sec. 648.4, paragraph (a)(4)(i) is added and (a)(4)(ii) is
reserved to read as follows:
Sec. 648.4 Vessel and individual commercial permits.
(a) * * *
(4) * * *
(i) Maine mahogany quahog permit. (A) A vessel is eligible for a
Maine mahogany quahog permit to fish for ocean quahogs in the Maine
mahogany quahog zone if it meets the following eligibility criteria:
(1) The vessel was issued a Federal Maine Mahogany Quahog
Experimental Permit during one of the experimental fisheries authorized
by the Regional Administrator between September 30, 1990, and September
30, 1997; and,
(2) The vessel landed at least one Maine bushel of ocean quahogs
from the Maine mahogany quahog zone as documented by fishing or
shellfish logs submitted to the Regional Administrator prior to January
1, 1998.
(B) Application/renewal restriction. No one may apply for a Maine
mahogany quahog permit for a vessel after May 19, 1999.
(C) Replacement vessels. To be eligible for a Maine mahogany quahog
permit, a replacement vessel must be replacing a vessel of
substantially similar harvesting capacity that is judged unseaworthy by
the USCG, for reasons other than lack of maintenance, or that
involuntarily left the fishery. Both the entering and replaced vessels
must be owned by the same person. Vessel permits issued to vessels that
involuntarily leave the fishery may not be combined to create larger
replacement vessels.
(D) Appeal of denial of a permit. (1) Any applicant denied a Maine
mahogany quahog permit may appeal to the Regional Administrator within
30 days of the notice of denial. Any such appeal shall be in writing.
The only ground for appeal is that the Regional Administrator's
designee erred in concluding that the vessel did not meet the criteria
in paragraph (a)(4)(i)(A) of this section. The appeal must set forth
the basis for the applicant's belief that the decision of the Regional
Administrator's designee was made in error.
(2) The appeal may be presented, at the option of the applicant, at
a hearing before an officer appointed by the Regional Administrator.
(3) The hearing officer shall make a recommendation to the Regional
Administrator.
(4) The Regional Administrator will make a final decision based on
the criteria in paragraph (a)(4)(i)(A) of this section and on the
available record, including any relevant documentation submitted by the
applicant and, if a hearing is held, the recommendation of the hearing
officer. The decision on the appeal by the Regional Administrator is
the final decision of the Department of Commerce.
(ii) [Reserved]
* * * * *
6. In Sec. 648.14, paragraphs (a)(23), (24), and (25) are revised,
paragraphs (a)(105) through (109) and paragraph (a)(113) are added, and
paragraph (x)(1)(ii) and the first sentence of paragraph (x)(1)(iii)
are revised to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(23) Land unshucked surf clams or ocean quahogs harvested in or
from the EEZ outside the Maine mahogany quahog zone in containers other
than cages from vessels capable of carrying cages.
(24) Land unshucked surf clams and ocean quahogs harvested in or
from the EEZ within the Maine mahogany quahog zone in containers other
than cages from vessels capable of carrying cages unless, with respect
to ocean quahogs, the vessel has been issued a Maine mahogany quahog
permit under this part and is not fishing for an individual allocation
of quahogs under Sec. 648.70.
(25) Fail to comply with any of the notification requirements
specified in Sec. 648.15(b).
* * * * *
(105) Offload unshucked surf clams or ocean quahogs harvested in or
from the EEZ outside the Maine mahogany quahog zone from vessels not
capable of carrying cages, other than directly into cages.
(106) Offload unshucked surf clams harvested in or from the EEZ
within the Maine mahogany quahog zone from vessels not capable of
carrying cages, other than directly into cages.
(107) Offload unshucked ocean quahogs harvested in or from the EEZ
within the Maine mahogany quahog zone from vessels not capable of
carrying cages, other than directly into cages, unless the vessel has
been issued a Maine mahogany quahog permit under this part and is not
fishing for an individual allocation of quahogs under Sec. 648.70.
(108) Purchase, receive for a commercial purpose other than
transport to a testing facility, or process, or attempt to purchase,
receive for commercial purpose other than transport to a testing
facility, or process, outside Maine, ocean quahogs harvested in or from
the EEZ within the Maine mahogany quahog zone, except at a facility
participating in an overall food safety program, operated by the
official state agency having jurisdiction, that utilizes food safety-
based procedures including sampling and analyzing for PSP toxin
consistent with procedures used by the State of Maine for such purpose.
(109) Land or possess ocean quahogs harvested in or from the EEZ
within the Maine mahogany quahog zone after the effective date
published in the Federal Register notifying participants that Maine
mahogany quahog quota is no longer available, unless the vessel is
fishing for an individual allocation of ocean quahogs under
Sec. 648.70.
* * * * *
(113) Land ocean quahogs outside Maine that are harvested in or
from the
[[Page 27485]]
EEZ within the Maine mahogany quahog zone, except at a facility
participating in an overall food safety program, operated by the
official state agency having jurisdiction, that utilizes food safety-
based procedures including sampling and analyzing for PSP toxin
consistent with procedures used by the State of Maine for such purpose.
* * * * *
(x) * * *
(1) * * *
(ii) Surf clams or ocean quahogs landed from a trip for which
notification was provided under Sec. 648.15(b) or Sec. 648.70(b) are
deemed to have been harvested in the EEZ and count against the
individual's annual allocation unless the vessel has a valid Maine
mahogany quahog permit issued pursuant to Sec. 648.4(a)(4)(i) and is
not fishing for an individual allocation under Sec. 648.70.
(iii) Surf clams or ocean quahogs found in cages without a valid
state tag are deemed to have been harvested in the EEZ and are deemed
to be part of an individual's allocation, unless the vessel has a valid
Maine mahogany quahog permit issued pursuant to Sec. 648.4(a)(4)(i) and
is not fishing for an individual allocation under Sec. 648.70; or,
unless the preponderance of available evidence demonstrates that he/she
has surrendered his/her surf clam and ocean quahog permit issued under
Sec. 648.4 and he/she conducted fishing operations exclusively within
waters under the jurisdiction of any state. * * *
* * * * *
7. In Sec. 648.15, paragraph (b)(4) is added to read as follows.
Sec. 648.15 Facilitation of enforcement.
* * * * *
(b) * * *
(4) Suspension of notification requirements. The Regional
Administrator may suspend notification requirements for vessels fishing
under a Maine mahogany quahog permit issued pursuant to
Sec. 648.4(a)(4)(i) if he determines that such notification is not
necessary to enforce effectively the management measures in the Maine
mahogany quahog zone. The Regional Administrator may rescind such
suspension if he concludes that the original determination is no longer
valid. A suspension or recision of suspension of the notification
requirements by the Regional Administrator shall be published in the
Federal Register.
* * * * *
8. In Sec. 648.73, paragraph (d) is added to read as follows.
Sec. 648.73 Closed areas.
* * * * *
(d) Areas closed due to the presence of paralytic shellfish
poisoning toxin--(1) Maine mahogany quahog zone. The Maine mahogany
quahog zone is closed to fishing for ocean quahogs except in those
areas of the zone that are tested by the State of Maine and deemed to
be within the requirements of the National Shellfish Sanitation Program
and adopted by the Interstate Shellfish Sanitation Conference as
acceptable limits for the toxin responsible for paralytic shellfish
poisoning. Harvesting is allowed in such areas during the periods
specified by the Maine Department of Marine Resources during which
quahogs are safe for human consumption. For information regarding these
areas contact the State of Maine Division of Marine Resources at (207-
624-6550).
(2) [Reserved]
9. In Sec. 648.75, introductory text is added to read as follows:
Sec. 648.75 Cage identification.
Except as provided in Sec. 648.76, the following cage
identification requirements apply to all vessels issued a Federal
fishing permit for surf clams and ocean quahogs:
* * * * *
10. Section 648.76 is added to subpart E to read as follows.
Sec. 648.76 Maine mahogany quahog zone.
(a) Landing requirements. (1) A vessel issued a valid Maine
mahogany quahog permit pursuant to Sec. 648.4(a)(4)(i), and fishing for
or possessing ocean quahogs within the Maine mahogany quahog zone, must
land its catch in the State of Maine.
(2) A vessel fishing under an individual allocation permit,
regardless of whether it has a Maine mahogany quahog permit, fishing
for or possessing ocean quahogs within the zone, may land its catch in
the State of Maine, or, consistent with applicable state law in any
other state that utilizes food safety-based procedures including
sampling and analyzing for PSP toxin consistent with those food safety-
based procedures used by the State of Maine for such purpose, and must
comply with all requirements in Secs. 648.70 and 648.75. Documentation
required by the state and other laws and regulations applicable to food
safety-based procedures must be made available by federally-permitted
dealers for inspection by NMFS .
(b) Quota monitoring and closures--(1) Catch quota. (i) The annual
quota for harvest of mahogany quahogs from within the Maine mahogany
quahog zone is 100,000 Maine bushels (35,150 hL). The quota may be
revised annually within the range of 17,000 and 100,000 Maine bushels
(5,975 and 35,150 hL) following the procedures set forth in
Sec. 648.71.
(ii) All mahogany quahogs landed for sale in Maine by vessels
issued a Maine mahogany quahog permit and not fishing for an individual
allocation of ocean quahogs under Sec. 648.70 shall be applied against
the Maine mahogany quahog quota, regardless of where the mahogany
quahogs are harvested.
(iii) All mahogany quahogs landed by vessels fishing in the Maine
mahogany quahog zone for an individual allocation of quahogs under
Sec. 648.70 will be counted against the ocean quahog allocation for
which the vessel is fishing.
(iv) The Regional Administrator will monitor the quota based on
dealer reports and other available information and shall determine the
date when the quota will be harvested. NMFS shall publish notification
in the Federal Register advising the public that, effective upon a
specific date, the Maine mahogany quahog quota has been harvested and
notifying vessel and dealer permit holders that no Maine mahogany
quahog quota is available for the remainder of the year.
(2) Maine Mahogany Quahog Advisory Panel. The Council shall
establish a Maine Mahogany Quahog Advisory Panel consisting of
representatives of harvesters, dealers, and the Maine Department of
Marine Resources. The Advisory Panel shall make recommendations,
through the Surf Clam and Ocean Quahog Committee of the Council,
regarding revisions to the annual quota and other management measures.
[FR Doc. 98-13284 Filed 5-14-98; 4:41 pm]
BILLING CODE 3510-22-P
