Fisheries of the Northeastern United States; Final 1998 Fishing Quotas for Atlantic Surf Clams and Ocean Quahogs

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 980107005-8055-01; I.D. 102997E]

Fisheries of the Northeastern United States; Final 1998 Fishing

Quotas for Atlantic Surf Clams and Ocean Quahogs

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final 1998 fishing quotas for surf clams and ocean quahogs.

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SUMMARY: NMFS issues quotas for the Atlantic surf clam and ocean quahog

fisheries for 1998. These quotas were selected from a range defined as

optimum yield (OY) for each fishery and in compliance with overfishing

definitions for each species. The intent of this action is to establish

allowable harvests of surf clams and ocean quahogs from the exclusive

economic zone for 1998.

DATES: January 1, 1998, through December 31, 1998.

ADDRESSES: Copies of the Mid-Atlantic Fishery Management Council's

analysis and recommendations, including the Environmental Assessment,

Regulatory Impact Review/Initial Regulatory Flexibility Analysis, and

Final Regulatory Flexibility Analysis 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.

FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst,

508-281-9104.

SUPPLEMENTARY INFORMATION: The Fishery Management Plan for the Atlantic

Surf Clam and Ocean Quahog Fisheries (FMP) directs the Assistant

Administrator for Fisheries, in consultation with the Mid-Atlantic

Fishery Management Council (Council), to specify quotas for surf clams

and ocean quahogs on an annual basis from a range that represents the

OY for each fishery. It is the policy of the Council that the level

selected allow fishing to continue at that level for at least 10 years

for surf clams and 30 years for ocean quahogs. While staying within

this constraint, the quota is to be set at a level that would meet the

estimated market demand.

The fishing quotas must be less than the level that would

constitute overfishing as defined for each species. The overfishing

definitions are fishing mortality rates of F20% (20 percent

of maximum spawning potential (MSP)) for surf clams and F25%

(25 percent of MSP) for ocean quahogs.

This action establishes a surf clam quota of 2.565 million bushels

(1.362 mil. hectoliters (hL)) and an ocean quahog quota of 4 million

bushels (2.122 mil. hL). The 1998 surf clam quota is identical to the

1997 quota, and the 1998 ocean quahog quota is a reduction of 0.317

million bushels (0.168 mil. hL) from the 1997 quota. These levels are

unchanged from the levels set forth in the preamble to the proposed

rule, published in the Federal Register on November 24, 1997 (62 FR

62543). That preamble presents background on the specification of these

levels.

Final 1998 Surf Clam/Ocean Quahog Quotas

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1998 final 1998 final

Fishery quotas (bu) quotas (hL)

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Surf clam..................................... 2,565,000 1,362,000

Ocean quahog.................................. 4,000,000 2,122,000

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Comments and Responses

Two sets of comments were received on the proposed quotas. One

commenter, a consulting firm, favors a reduction of the surf clam quota

below the proposed level. The other commenter, an industry participant,

opposed the proposed reduction of the 1998 ocean quahog quota. These

commenters also offered several other comments on various aspects of

the quota setting process.

Comment 1: One commenter believes the action of the Council, in

making a recommendation to keep the surf clam quota at the 1997 level,

violated national standard 1 of the Magnuson-Stevens Act which requires

that fisheries be managed to provide OY based on the maximum

sustainable yield as reduced by any relevant economic, social, or

ecological factor. The commenter, in requesting a reduction of the

quota, asserted that certain prevailing economic conditions were not

properly considered by the Council as it contemplated a possible

reduction to the surf clam fishing quota. The commenter suggested that

an oversupply of surf clams exists which, when coupled with a decrease

in demand, is having a detrimental effect on the industry in terms of

depressed prices. Based upon recent landings and ex-vessel and

wholesale prices, the commenter concluded that if the quota

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were reduced this adverse market condition would improve.

Response: NMFS disagrees with the contention that the quota level

violates national standard 1. At its August 1997 meeting, the Council's

Science and Statistical Committee (S&S Committee) agreed with the

Council staff recommendation of 2.565 mil. bushels (1.362 mil. hL) for

the 1998 surf clam quota. The S&S Committee noted that there is no

biological reason to reduce the quota. This recommendation was based on

advice from the 22nd Northeast Regional Stock Assessment Workshop (SAW

22) which recommended the quota remain at the 1996/1997 level of 2.565

mil. bushels (1.362 mil. hL) until a new stock assessment, with

abundance estimates based on fishery catch rate and research survey

data, is available. In addition, the S&S Committee concluded that the

economic rationale for reducing the quota, as presented at the August

meeting and repeated in the text of this comment, does not rely upon an

appropriate economic analysis but is, instead, based on a general

discussion of economic theory using anecdotal information from only one

segment of the industry.

In the absence of verifiable information to the contrary, there is

no justifiable basis to adjust the surf clam quota downward. NMFS notes

it falls within the OY range of 1.850 million bushels (0.982 mil. hL)

and 3.400 million bushels (1.805 mil. hL) specified in the FMP and

represents a reasonable OY from this fishery.

Comment 2: One commenter believes that the failure to reduce the

surf clam quota will negatively impact communities dependent upon the

surf clam fishery through reductions in crews' take-home pay and a

decrease in boat owners' profits. The commenter claims that local

fishing communities will undergo a major social upheaval which violates

national standard 8(B) of the Magnuson-Stevens Act which requires that

management measures ``to the extent practicable, minimize adverse

economic impacts on such communities.''

Response: In regard to national standard 8, the commenter

discusses, in very general terms, the major negative economic and

social impacts that the commenter anticipates communities would bear in

the absence of a surf clam quota reduction. However, the commenter

fails to provide any specific information. In the absence of any

socioeconomic data or analysis, the assertion of negative impact on

communities is only conjecture and not a sound basis upon which to

reduce the quota. Furthermore, in the absence of a biological

rationale, basing a reduction solely on economic allocation, would be

in violation of national standard 5 of the Magnuson-Stevens Act which

requires that no fishery management measure shall have economic

allocation as its sole purpose.

Comment 3: One commenter believes that the Council, in failing to

recommend a lower surf clam quota, disregarded the purposes section of

the Magnuson-Stevens Act found at paragraphs (4) and (5) of Section

2(b) which requires the preparation and implementation of fishery

management plans that will achieve and maintain, on a continuing basis,

the OY from each fishery; and take into account the social and economic

needs of the States.

Response: NMFS reiterates that there was not adequate information

presented to the Council during the comment period to substantiate this

comment.

Comment 4: One commenter stated that the Council's failure to

reduce the surf clam quota disregards FMP objectives 1, 3, and 4 which

guide the Council to: stabilize harvest rates in a way that minimizes

short-term economic dislocations, bring harvesting capacity in balance

with processing and biological capacity allowing industry to achieve

efficient utilization of capital resources, and provide a management

regime that is flexible to unanticipated short-term events and

consistent with long-term industry planning and investment needs.

Response: The Council has recommended and NMFS has specified a surf

clam quota of 2.565 million bushels (1.362 mil. hL) for each fishing

year since 1995. In the absence of a biological rationale for

decreasing the quota, the Council has chosen to accept the

recommendations of its own S&S Committee and maintain the previous

quota level for the 1998 fishing year. The Council found there was

insufficient information to require a reduction under the FMP, and NMFS

concurred.

Comment 5: One commenter believes that if the surf clam quota is

not reduced and an oversupply is allowed to continue into 1998, it will

shift the current balance of power between the processors and the

vessels to a position that will favor the processors.

Response: The balance of power between the processors and fishing

vessels under the FMP and the implementing regulations is not relevant

to the specification process.

Comment 6: One commenter argued that there has been no new science

to support a reduction in the ocean quahog quota.

Response: The results of SAW 22 were available in August, 1996, and

represent the most recent available stock assessment for surf clams and

ocean quahogs. New stock assessment information will be available from

SAW 27 in 1998 for purposes of setting the 1999 quota. SAW 22 did not

offer management advice on the 1998 ocean quahog fishing quotas,

whereas, in the case of surf clams they advised no change until the

next stock assessment. However, SAW 22 noted that a 30-year supply as

dictated by Council policy is possible only if the estimated biomass on

Georges Bank and in areas off Southern New England and Long Island

generally too deep to be harvested with current technology are

included. Furthermore, they cautioned that this strategy implies that

sustainable fishing after 30 years will be limited to recruitment and

very slow annual growth of fully recruited quahogs. Although the S&S

committee voted to recommend no change for the 1998 ocean quota from

the 1997 level of 4.317 mil. bus. (2.290 mil. hL), the Council, noting

the SAW 22 statement regarding the availability of quahogs over the

next 30-year period, voted to take a conservative position and

recommended a reduction in the quota to 4.00 mil. bus. (2.122 mil. hL),

the lowest OY specification allowed under the FMP.

Comment 7: One commenter argued that it is inappropriate to presume

that Georges Bank and deep water areas will not be available over the

next 30 years for the harvest of quahogs. The commenter argued that the

paralytic shellfish poisoning contamination may be addressed by testing

or may disappear in the future. The commenter also argued that

technology will be developed to allow deepwater harvesting.

Response: The Council believes that a conservative approach is

required for specifying the 1998 ocean quahog quota. The Council

realizes that in the absence of formidable recruitment, it may be

impossible to maintain a 30-year supply if the quahogs on Georges Bank

and the deepwater areas continue to be unavailable. NMFS has accepted

this as a valid concern, pending the new stock assessment.

NMFS acknowledges that it is possible that both concerns could be

addressed within the 30-year time period. However, that fact is not

sufficient to override the Council's recommendation. There has been no

recent progress in addressing the presence of paralytic shellfish

poison (PSP) toxin on Georges Bank. NMFS notes that in 1994 it worked

with the U.S. Food and Drug Administration to

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develop a draft lot-testing protocol to allow harvesting of ocean

quahogs on Georges Bank. Under the protocol, harvested animals would be

tested for the presence of PSP to ensure that contaminated product was

not marketed. NMFS hosted a meeting in October 1995 to review the

proposed protocol with representatives from industry and the coastal

states. At the meeting several technical issues were identified that

must be addressed in any final testing protocol. The attendees also

noted that there were major impediments to use of the protocol, notably

the costs of testing and disposal associated with contaminated product.

Meeting attendees expressed no immediate interest in proceeding further

with PSP testing.

The commenter also argued that a quota reduction was not necessary

because PSP could disappear in the future and deepwater harvest

technology could be developed in the future. In the absence of some

indication that such events are likely to occur, this is not sufficient

reason to overrule the judgement of the Council.

Comment 8: One commenter argued that the recommended ocean quahog

quota level represents an arbitrary value. The commenter argued there

is no biological rationale for the 4.0 million bushel level and that it

was selected because it was the lowest quota allowed under the FMP.

Response: The Council's rationale for recommending a decrease in

the ocean quahog quota involves only the conservation of the resource

and preservation of the fishery. Council members and the S&S Committee

expressed serious concern that given the biology of the species, its

extreme longevity, its slow growth rate, and sporadic and poorly

understood recruitment events, the current quota level may be very

risky in the long term.

Classification

This action is authorized by 50 CFR part 648, complies with the

National Environmental Policy Act, and is exempt from review under E.O.

12866.

The Council prepared an initial regulatory flexibility analysis as

part of the regulatory impact review, which concluded that this action

could have a significant economic impact on a substantial number of

small entities. This determination was described in the proposed rule

(62 FR 62543) and forwarded to the Chief Counsel for Advocacy of the

Small Business Administration.

In sum, the FRFA finds that of the 56 vessels participating in the

surf clam and ocean quahog fisheries in 1996, 20 fished exclusively for

surf clams, 14 fished for both surf clams and ocean quahogs, and 22

fished exclusively for ocean quahogs. The 36 vessels that harvest ocean

quahogs are considered, by definition, to be small entities and are all

impacted by the reduction in the ocean quahog quota. While the impact

of a 7.3 percent reduction in ocean quahog quota will be diluted

somewhat for those vessels augmenting their incomes with surf clam

harvests, a full 7.3 percent reduction in gross revenues is likely for

the vessels fishing exclusively for ocean quahogs. Therefore, this

action is likely to decrease the gross revenues of 61 percent of the

vessels that harvest ocean quahogs (22 out of 36 vessels) by more than

5 percent. NMFS has established a threshold for ``significant economic

impact'' on a substantial number of small entities under the Regulatory

Flexibility Act as a reduction of gross revenues greater than 5 percent

for 20 percent or more of the small entities. This action is,

therefore, found to be significant.

NMFS is required to consider alternative actions that would

minimize the negative economic impacts on small entities. Clearly, the

economic impact would be minimized if the quota reduction was less than

that enacted by this rule, however, NMFS has established the quota at

the level recommended by the Council. The Council made its quota

recommendation in response to several concerns, including its doubts

that ocean quahogs on Georges Bank and in deepwater areas will become

available for harvest. The Council and its S&S Committee also expressed

concern that harvest must be reduced in light of the species' slow

growth rate and poorly-understood recruitment. The Council's

Environmental Assessment noted that it may take up to 20 years,

depending upon environmental conditions, for ocean quahogs to reach a

marketable size, and that there has been no recent recruitment event.

NMFS has reviewed the concerns that led the Council to make its

recommendation and NMFS concurs in that recommendation. NMFS finds that

it is necessary to be very conservative in setting the 1998 quota to

assure that overfishing does not occur.

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for

Fisheries, NOAA, finds for good cause that a delay in the effective

date of the final fishing quotas for the 1998 fishing year for the

Atlantic surf clams and ocean quahog fisheries is unnecessary because

the quotas are not a requirement for which a regulated entity must come

into compliance. The fishing quotas are year-long quotas and are used

for the sole purpose of closing the fishery when the amounts specified

have been taken.

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

Dated: January 8, 1998.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

[FR Doc. 98-804 Filed 1-13-98; 8:45 am]

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