Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fishery, 49967-49971 [2013-20028]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 159 (Friday, August 16, 2013)]
[Rules and Regulations]
[Pages 49967-49971]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20028]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120604138-3684-03]
RIN 0648-BC21


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

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

ACTION: Final rule.

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SUMMARY: This final rule reopens an additional portion of the Georges 
Bank Closed Area to the harvest of Atlantic surfclams and ocean 
quahogs. This final

[[Page 49968]]

rule follows up on a preceding interim final rule that was published in 
the Federal Register on December 19, 2012. The previous interim final 
rule reopened a portion of the Georges Bank Closed Area that had been 
closed to the harvest of Atlantic surfclams and ocean quahogs since 
1990 due to the presence of toxins known to cause paralytic shellfish 
poisoning. However, the area reopened in the interim final rule was 
reduced in size from the area identified in the proposed rule. Based on 
comments received on the interim final rule and requests from the New 
England and Mid-Atlantic Fishery Management Councils, this final rule 
will reopen an additional portion of the Georges Bank Closed Area.

DATES: This rule is effective August 16, 2013.

ADDRESSES: An environmental assessment (EA) was prepared for this 
action that describes the final action and other alternatives 
considered, and provides an analysis of the impacts of the measures and 
alternatives. Copies of the EA are available on request from the NMFS 
Northeast Regional Administrator, John K. Bullard, 55 Great Republic 
Drive, Gloucester, MA 01930. The EA is also available online at https://www.nero.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Jason Berthiaume, Fishery Management 
Specialist, phone (978) 281-9177, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: The Georges Bank (GB) Closed Area, located 
in the Exclusive Economic Zone east of 69[deg]00' W. longitude and 
south of 42[deg]20' N. latitude, has been closed to the harvest of 
surfclams and ocean quahogs since 1990 due to red tide blooms that 
cause paralytic shellfish poisoning (PSP). The closure was implemented 
based on advice from the U.S. Food and Drug Administration (FDA), after 
samples tested positive for the toxins (saxitoxins) that cause PSP. 
Shellfish contaminated with the toxins, if eaten in large enough 
quantity, can cause illness or death in humans.
    Due to inadequate testing or monitoring of this area for the 
presence of PSP-causing toxins, the closure was made permanent in 1999. 
Since the implementation of the closure, NOAA's National Ocean Service 
has provided grants to the FDA, the states of Maine, New Hampshire, and 
Massachusetts, and a clam industry representative to collect water and 
shellfish samples from Federal waters off southern New England. NMFS 
has also issued exempted fishing permits (EFPs) since 2008 to surfclam 
and ocean quahog vessels to conduct research in the closure area.
    Testing of clams in the area by the FDA in cooperation with NMFS 
and the fishing industry under the EFPs demonstrate that PSP toxin 
levels have been well below the regulatory limit established for public 
health and safety (FDA 2010).\1\ The FDA and NMFS also developed a 
Protocol for Onboard Screening and Dockside Testing in Molluscan 
Shellfish that is designed to test and verify that clams harvested from 
the GB PSP Closed Area are safe. The protocol was formally adopted into 
the National Shellfish Sanitation Program at the October 2011 
Interstate Shellfish Sanitation Conference.
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    \1\ January 10, 2010, letter from Donald W. Kraemer, Deputy 
Director, Office of Food Safety, Food and Drug Administration to 
Patricia A. Kurkul, Regional Administrator, NOAA's NMFS.
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    On August 31, 2012, NMFS published a proposed rule in the Federal 
Register (77 FR 53164) proposing to reopen a portion of the GB PSP 
Closed Area. On December 19, 2012, we published an interim final rule 
in the Federal Register (77 FR 75057) that reopened a portion of this 
area. However, in response to comments received on the proposed rule, 
the area reopened with the interim final rule was modified slightly 
from the area in the proposed rule. The interim final rule had a 60-day 
comment period to allow for additional comments on the modified area. 
NMFS has reviewed comments received on the interim final rule, and this 
final rule will reopen the area as originally proposed. That is, in 
addition to the area that was reopened in the interim final rule, this 
final rule reopens an additional 958 square miles (2,481 square km) of 
the GB PSP Closed Area for the harvest of surfclams and ocean quahogs, 
provided vessels fishing in the area obtain a Letter of Authorization 
from NMFS and comply with all the terms of the approved PSP testing 
protocol.
    The area being reopened is defined in the table below and the 
remaining portion of the GB Closed Area will remain closed. The area 
identified by the coordinates contain both the area reopened with the 
interim final rule (77 FR 75057) and the additional area being reopened 
with this final rule.
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[GRAPHIC] [TIFF OMITTED] TR16AU13.003

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------------------------------------------------------------------------
                     Point                        Latitude    Longitude
------------------------------------------------------------------------
1.............................................   42[deg]00'   68[deg]50'
2.............................................   42[deg]00'   67[deg]20'
3.............................................   41[deg]00'   67[deg]20'
4.............................................   41[deg]00'   67[deg]10'
5.............................................   40[deg]40'   67[deg]10'
6.............................................   40[deg]40'   68[deg]30'
7.............................................   41[deg]30'   68[deg]30'
8.............................................   41[deg]30'   68[deg]50'
1.............................................   42[deg]00'   68[deg]50'
------------------------------------------------------------------------

Public Comments

    The comment period for the interim final rule ended on February 19, 
2013, and NMFS received 14 comments. One comment was against reopening 
any portion of the GB PSP Closed Area, but provided no supporting 
justification. The remaining 13 comments were in support of reopening 
additional portions of the GB Closed Area.
    Comment 1: Eleven comments supported reopening additional areas and 
all provided similar rationale. These comments were from the fishing 
industry, dealers, and processers, as well as the New England (NEFMC) 
and Mid-Atlantic Fishery Management Councils (MAFMC). Primarily, the 
commenters pointed out that the majority of the GB Closed Area is open 
to other types of bottom-tending mobile gear, so it is not equitable 
that the area remain closed to surfclam and ocean quahog harvesting. 
The industry also stated that the resource is abundant on GB and the 
fishery would benefit from greater access to the resource.
    Response: NMFS agrees that it may be justifiable to reopen some 
additional areas and that reopening additional areas may take some 
effort off of southern stocks, but, at this time, NMFS does not support 
reopening areas beyond the areas that were originally considered. The 
original areas that were analyzed were considered because the data 
demonstrate that the shellfish harvested from those areas have been and 
are currently safe for human consumption. This reopening was also based 
on a request from the MAFMC for a specific area to be reopened based 
upon the available data. The areas that were analyzed for this action 
were based on areas that were sampled under an EFP since 2008. None of 
the samples collected under the EFP presented results that would raise 
public health and safety concerns. Because the research was only 
conducted in specific areas, no additional data are available to 
support reopening additional areas. Further, NMFS defers to the FDA on 
matters of public health and safety and would need further direction 
from the FDA and/or evidence that other areas

[[Page 49970]]

outside of what was included in the analysis for this action are safe 
to reopen.
    Comment 2: In addition to the comments discussed above in support 
of reopening additional areas, two additional comments supported 
reopening specifically the Northeast corner that was considered in the 
proposed rule, but was withdrawn in the interim final rule. All 13 of 
the comments received in support of reopening additional areas raised 
equity concerns because most of the GB Closed areas is open for other 
types of bottom-tending mobile gear, except hydraulic clam dredge gear. 
The two commenters also stated that the Northeast corner area that was 
withdrawn is being considered as a potential habitat management area 
(HMA) because it contains rocky and coral structure habitats. Further, 
because hydraulic clam dredges can only fish in sandy substrates, where 
recovery times are demonstrated to be short, and because hydraulic clam 
dredge gear sustains significant damage when fished in coral and rocky 
substrates, the hydraulic clam dredge gear would, by default, not fish 
in the rocky and coral structures of concern and would, therefore, not 
disturb these habitats. Finally, a number of the commenters state that 
they agree with the conclusion drawn in the interim final rule that 
impacts from hydraulic clam dredge gear in sandy substrates is 
demonstrated to be temporary and minimal, which would be the case in 
the Northeast corner area.
    Response: NMFS agrees that because other types of bottom-tending 
mobile gear are already permitted for use in the potential HMA, it is 
unlikely that additional effort from the surfclam fishery will have 
significant additional habitat impacts or foreclose any future actions 
by the NEFMC to establish a new habitat closed area in this location. 
The Atlantic surfclam fishery is carried out only in sandy substrates, 
where habitat recovery times for hydraulic dredge gear have 
demonstrated to be relatively short. In addition, the areas that are 
being considered as HMAs, are being considered because they contain 
areas with rocky and coral structures. Because hydraulic clam dredge 
gear does not operate in these substrates, it is not likely that the 
rocky and coral substrates will be affected.
    Further, most of the area in the Northeast corner, which was 
withdrawn in the interim final rule, is located in a relatively shallow 
(30-60 m) part of GB that is routinely highly disturbed by strong tidal 
currents and wave action from storms. Published studies of the effects 
of hydraulic clam dredges in high-energy, sandy habitats, such as those 
where clam fishing occurs, indicate that in this type of environment 
the affected physical and biological features of the seafloor can be 
expected to recover from the impacts of this gear in less than a year, 
and can actually recover within a matter of a few days or months. For 
this reason, NMFS agrees that the minimal or temporary impacts caused 
by the use of this gear would not have significant impacts on habitat 
in the affected area.

Changes From Interim Final Rule

    As noted above, in response to comments received on the proposed 
rule, the area that was reopened with the interim final rule was 
modified slightly from the proposed rule. The NEFMC submitted a comment 
on the proposed rule informing NMFS that its Habitat Oversight 
Committee is developing Essential Fish Habitat Omnibus Amendment 2, 
which may include potential HMAs that, if implemented, may spatially 
overlap with the areas proposed for reopening in the proposed rule. 
Because of the NEFMC concern, we modified the area that was reopened 
with the interim final rule to ensure that there was no overlap with 
any portion of the potential HMAs. The intent was to protect the 
potential HMAs from any additional disturbances, while also allowing 
the Atlantic surfclam/ocean quahog fleet to access as much of the 
proposed area as possible without compromising the proposed HMA.
    The NEFMC also requested that we extend the comment period on the 
proposed rule for an additional 60 days to allow them time to compose a 
more formal comment. We did not extend the comment period on the 
proposed rule, but instead, we published an interim final rule, which 
included an additional 60-day comment period while also satisfying the 
industry's and the MAFMC's request to have the area reopened by the 
start of the Atlantic surfclam and ocean quahog fishing year on January 
1, 2013.
    The comment period on the interim final rule closed on February 19, 
2013. We received an additional comment from the NEFMC, in which they 
rescinded their previous comment regarding concern with reopening the 
portion of the area that would overlap with the potential HMAs. 
Instead, the NEFMC requested that we reopen all portions of the GB PSP 
Closed Area that are open to other types of bottom-tending mobile gear.
    In light of comments received on the interim final rule, we will 
reopen the portion of the closed area that was originally proposed, but 
which was not reopened based on the NEFMC's initial concern. The 
remainder of the GB PSP Closed Area will remain closed.

Classification

    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 
law.
    The Assistant Administrator for Fisheries, NOAA, is waiving the 30-
day delayed effectiveness provision of the Administrative Procedure 
Act, pursuant to 5 U.S.C. 553(d)(1), because this is ``a substantive 
rule which . . . relieves a restriction.'' This rule imposes no new 
requirements or burdens on the public; to the contrary, it provides 
economic benefits to the fishery participants by reopening an 
additional area that has been closed to the harvest of surfclams and 
ocean quahogs since 1990 due to red tide blooms that cause PSP, without 
resulting in overfishing. Because recent testing in the GB Closed Area 
has demonstrated that PSP toxin levels were well below the regulatory 
limit established for public health and safety, continued closure of 
the area is not necessary and could unnecessarily restrict Atlantic 
surfclam and ocean quahog fishing.
    Furthermore, the Assistant Administrator for Fisheries, NOAA has 
determined that there is good cause to waive the 30-day delay in 
effectiveness under 5 U.S.C. 553(d)(3). The GB PSP Closed Area has 
caused harvesting to be limited to the Mid-Atlantic, where Atlantic 
surfclam and ocean quahog stocks have recently become less abundant. A 
30-day delay in effectiveness would continue to prohibit harvest from 
this portion of the GB PSP Closed Area and would continue to put 
pressure on Mid-Atlantic stocks. Waiving the 30-day delay would allow 
additional areas in the GB Closed Area to be reopened sooner, which 
could relieve fishing pressure on southern stocks and would allow for 
greater distribution of Atlantic surfclam and ocean quahog harvest 
effort in the region. We also received public comment on the proposed 
rule for this action that fishing is only being continued in the Mid-
Atlantic region to maintain the market, and vessels may no longer be 
profiting. Thus, a delay in effectiveness could result in continued 
loss of revenue for the Atlantic surfclam and ocean quahog fishing 
fleet.
    Failure to make this final rule effective upon publication will

[[Page 49971]]

undermine the intent of the rule to promote optimal utilization and 
conservation of the Atlantic surfclam and ocean quahog resources. For 
these reasons, the 30-day delay is waived and this rule will become 
effective upon publication in the Federal Register.
    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule will not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for this certification was provided in the proposed rule for this 
action (77 FR 53163) and is not repeated here. No comments were 
received regarding the certification and NMFS has not received any new 
information that would affect its determination. As a result, a final 
regulatory flexibility analysis is not required and none has been 
prepared.
    On June 20, 2013, the Small Business Administration (SBA) issued a 
final rule revising the small business size standards for several 
industries effective July 22, 2013 (78 FR 37398). The rule increased 
the size standard for Finfish Fishing from $4.0 to $19.0 million, 
Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing 
from $4.0 to $7.0 million. Pursuant to the Regulatory Flexibility Act, 
and prior to SBA's June 20, 2013, final rule, a certification was 
developed for this action using SBA's former size standards. Subsequent 
to the June 20, 2013, rule, NMFS has reviewed the certification 
prepared for this action in light of the new size standards. Under the 
former, lower size standards, all entities subject to this action were 
considered small entities, thus they all would continue to be 
considered small under the new standards. NMFS has determined that the 
new size standards do not affect the analyses prepared for this action.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 12, 2013.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.76, paragraph (a)(4) is revised to read as follows:


Sec.  648.76  Closed areas.

    (a) * * *
    (4) Georges Bank. The paralytic shellfish poisoning (PSP) 
contaminated area, which is located on Georges Bank, and is located 
east of 69[deg] W. long., and south of 42[deg]20' N. lat. is closed to 
the harvest of surfclams and ocean quahogs. A portion of the Georges 
Bank Closed Area is open to harvest surfclams and ocean quahogs 
provided the vessel complies with the requirements specified in 
paragraph (a)(4)(i) of this section. The open portion of the Georges 
Bank Closed Area is defined by straight lines connecting the following 
points in the order stated:

              Open Portion of the Georges Bank Closed Area
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                  Point                     N. Latitude    W. Longitude
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1.......................................      42[deg]00'      68[deg]50'
2.......................................      42[deg]00'      67[deg]20'
3.......................................      41[deg]00'      67[deg]20'
4.......................................      41[deg]00'      67[deg]10'
5.......................................      40[deg]40'      67[deg]10'
6.......................................      40[deg]40'      68[deg]30'
7.......................................      41[deg]30'      68[deg]30'
8.......................................      41[deg]30'      68[deg]50'
1.......................................      42[deg]00'      68[deg]50'
------------------------------------------------------------------------

    (i) Requirements for Vessels Fishing in the Open Portion of the 
Georges Bank Closed Area. A vessel may fish in the open portion of the 
Georges Bank Closed Area as specified in this paragraph (a)(4), 
provided it complies with the following terms and conditions:
    (A) A valid letter of authorization issued by the Regional 
Administrator must be onboard the vessel; and
    (B) The vessel must adhere to the terms and conditions of the PSP 
testing protocol as adopted into the National Shellfish Sanitation 
Program by the Interstate Shellfish Sanitation Conference. All 
surfclams and ocean quahogs harvested from the area must be handled in 
accordance with the terms and conditions of the protocol from the first 
point of harvest through completion of testing and release by the State 
Shellfish Control Authority as required by the PSP testing protocol; 
and
    (C) Prior to leaving port at the start of a fishing trip, the 
vessel's owner or operator must declare its intent to fish in the area 
through the vessel's vessel monitoring system.
    (ii) [Reserved]
* * * * *
[FR Doc. 2013-20028 Filed 8-15-13; 8:45 am]
BILLING CODE 3510-22-P