Federal Register, Volume 77 Issue 244 (Wednesday, December 19, 2012)

[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Rules and Regulations]
[Pages 75057-75064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30589]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120604138-2672-02]
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: Interim final rule; request for comments.

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SUMMARY: This interim final rule reopens a portion of the Georges Bank
Closed Area to the harvest of Atlantic surfclams and ocean quahogs. The
area has been closed since 1990 due to the presence of toxins known to
cause paralytic shellfish poisoning. The reopening is based on a
request from the Mid-Atlantic Fishery Management Council and the recent
adoption of a testing protocol into the National Shellfish Sanitation
Program.

DATES: Effective January 1, 2013. Comments must be received by February
19, 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 http://www.nero.noaa.gov/. You may submit comments on this document,
identified by NOAA-NMFS-2012-0121 by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal www.regulations.gov. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter NOAA-NMFS-2012-0121 in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on the right of that line.
Mail: Submit written comments to John K. Bullard, Regional
Administrator, Northeast Region, NMFS, 55 Great Republic Drive,
Gloucester, MA 01930-2298. Mark on the outside of the envelope,
``Comments on GB PSP Closed Area Reopening.''
Fax: (978) 281-9135; Attn: Jason Berthiaume.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information, or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file
formats only.

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

SUPPLEMENTARY INFORMATION:

Background

The Georges Bank (GB) Closed Area, located in the Exclusive
Economic Zone east of 69[deg]00' W. long. and south of 42[deg]20' N.
lat., 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 toxins (saxitoxins) that cause PSP. These toxins are produced by
the alga Alexandrium fundyense, which can form blooms commonly referred
to as red tides, or harmful algal blooms, and can accumulate in water
column filter-feeding shellfish. Shellfish contaminated with the toxin,
if eaten in large enough quantity, can cause illness or death in
humans.
Due to inadequate testing or monitoring of the water and shellfish

[[Page 75058]]

within the area for the presence of PSP-causing toxins, the closure was
made permanent in 1999, under Amendment 12 to the Atlantic Surfclam and
Ocean Quahog Fishery Management Plan (FMP). 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 on GB 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 safety (FDA 2010). The FDA and NMFS
also developed a Protocol for Onboard Screening and Dockside Testing in
Molluscan Shellfish (the protocol) that is designed to test and verify
that clams harvested from GB are safe. The protocol was formally
adopted into the National Shellfish Sanitation Program at the October
2011 Interstate Shellfish Sanitation Conference.
On June 30, 2010, NMFS published a similar proposal in the Federal
Register (75 FR 37745) to re-open a portion of the GB Closed Area. This
proposed rule was later withdrawn due to public comments that opposed
reopening the GB Closed Area without having a testing protocol in
place. Now that the protocol has been formally adopted, NMFS is
reopening a portion of the GB Closed Area with the requirement that the
protocol be used on all fishing trips into the area.
This action also implements specific reporting requirements for the
reopened area. To access the reopened area, a vessel must obtain a
letter of authorization (LOA) from NMFS. The LOA outlines the
harvesting requirements for the reopened area; by obtaining the LOA, a
vessel acknowledges and agrees to the terms and conditions of the
protocol and the LOA. Signing up for an LOA also allows NMFS to know
which vessels are eligible to fish in the reopened area. NMFS has the
authority to invalidate the LOA, should a vessel not comply with the
requirements for harvesting in the reopened area. NMFS has also
developed new vessel monitoring system (VMS) codes for the area. These
codes will allow NMFS and enforcement agencies to readily identify a
vessel's intent to fish in the area. The new VMS codes and the LOA will
provide NMFS with additional oversight tools to assist enforcement and
monitoring efforts in order to ensure public health and safety.
Since research began in the area in 2008, no PSP toxin measurements
have been recorded above regulatory limits, and PSP toxin monitoring
will be conducted under the terms of the protocol for all trips into
the area. NMFS retains the authority to close any area to harvesting of
surfclams and ocean quahogs to prevent contaminated shellfish from
entering the market. Any future closures or openings within the GB
Closed Area will be based upon PSP toxin testing results conducted
under the terms of the protocol, the advice of the FDA, and the most
current information available.
NMFS reopens the identified portion of the GB Closed Area to the
harvest of surfclams and ocean quahogs, under its authority at Sec.
648.76(c). However, we will continue to defer to the FDA in matters of
public health and, should we receive new data or advice from the FDA,
we may have to reconsider the status of any reopened areas or the need
for additional closures.

Changes From Proposed Rule

NMFS published a proposed rule for this action in the Federal
Register on August 31, 2012 (77 FR 53164), with a 30-day comment period
that ended on October 1, 2012. In the proposed rule, three alternatives
were identified: Alternative A was the largest of the three, and
encompassed the entire area between Closed Area I and Closed Area II;
Alternative B was smaller than Alternative A area and encompassed the
area defined under the 2012 EFP; Alternative C was the smallest of the
three areas, and is known as the Cultivator Shoals area. Due to
comments received on the proposed rule, the area being reopened with
this interim final rule represents a slight modification to the
Alternative A area. The New England Fishery Management Council (NEFMC)
submitted a comment informing NMFS that its Habitat Oversight Committee
is currently developing Essential Fish Habitat (EFH) Omnibus Amendment
2, which may include potential habitat management areas (HMAs) that, if
implemented, would spatially overlap with the areas initially proposed
for reopening. Because of this, NMFS has modified the area that will be
reopened with this interim final rule to ensure that there is no
overlap with any portion of the potential HMAs. This will allow the
NEFMC to continue development of the habitat amendment without
additional risk to the potential new HMAs, while also allowing the
Atlantic surfclam/ocean quahog fleet to access most of the proposed
area. This will prevent any additional Atlantic surfclam/ocean quahog
effort from being introduced into the potential HMAs while they are
still being developed. After the habitat amendment has been completed,
and after NMFS reviews any additional comments on the measures in this
interim final rule, NMFS may reconsider the reopened area and will
publish a final rule in the Federal Register implementing the final
area. In the meantime, the surfclam and ocean quahog fishery can access
the majority of the area originally proposed, and the areas of concern
to the NEFMC will remain closed pending further comments and/or actions
by the NEFMC.
The area being reopened is defined in the table below and
illustrated in the map and the remaining portion of the GB Closed Area
will remain closed.

------------------------------------------------------------------------
Point N. latitude W. longitude
------------------------------------------------------------------------
ROA1........................... 42[deg]00' 68[deg]50'
ROA2........................... 42[deg]00' 67[deg]57'
ROA3........................... 41[deg]34' 67[deg]57'
ROA4........................... 41[deg]34' 67[deg]20'
ROA5........................... 41[deg]00' 67[deg]20'
ROA6........................... 41[deg]00' 67[deg]10'
ROA7........................... 40[deg]40' 67[deg]10'
ROA8........................... 40[deg]40' 68[deg]30'
ROA9........................... 41[deg]30' 68[deg]30'
ROA10.......................... 41[deg]30' 68[deg]50'
------------------------------------------------------------------------

[[Page 75059]]

[GRAPHIC] [TIFF OMITTED] TR19DE12.018

This interim final rule also includes a clarifying prohibition that
was not included in the proposed rule. The additional regulation
prohibits the harvest of Atlantic surfclams or ocean quahogs from the
reopened portion of the GB Closed Area without being in compliance with
the protocol, LOA, and VMS requirements.

Comments and Responses

NMFS received 19 comments on the proposed rule. One comment opposed
reopening any portion of the GB Closed Area, but provided no factual
basis for the opposition. Eleven comments were in support of reopening
the Alternative A area; three were in support of the Alternative C
area; and no comments were received specifically supporting the
Alternative B area. Generally, all comments received were in support of
reopening a portion of the GB Closed Area and were also in support of
requiring the testing protocol and corresponding reporting requirements
on all trips into the reopened area.
Comment 1: One of the comments voiced support for reopening the
Alternative C area, but provided no rationale for this support, and
also wanted to ensure a mechanism exists to prohibit access to the
reopened area should a vessel not follow the protocol.
Response: With this action, NMFS is also implementing measures that
allow for additional oversight of vessels harvesting in the reopened
area including mechanisms to control and monitor access. A vessel that
wishes to harvest from the reopened areas must obtain an LOA from NMFS.
The LOA explicitly outlines the harvesting requirements for the
reopened area and by obtaining the LOA the vessel is acknowledging and
agreeing to the terms and conditions of the protocol and the LOA,
including NMFS's ability to invalidate the LOA, should the vessel not
comply with the requirements. Further, NMFS has also developed new VMS
codes that are specific to the area. With these codes, NMFS will able
to readily identify a vessel's intent to fish in the area, requiring
the vessel to follow the terms and conditions of the protocol. The new
VMS codes will help facilitate enforcement and perform monitoring of
the area. Thus, with the protocol, the LOA, and the new VMS codes, NMFS
has the necessary mechanisms available to appropriately monitor and
enforce the provisions in this rule, including prohibiting a vessel's
access to the area, should it become necessary.
Comment 2: Cote Fisheries, Inc., and the Atlantic Offshore
Lobstermen's Association provided comments on behalf of the lobster
industry in support of the Alternative C area due to concerns regarding
potential gear conflicts within the larger Alternative A area. The
commenters also raised concerns that hydraulic dredge fishing gear
could bycatch soft shell and egg-bearing lobsters. The commenters state
that lobster fishing takes place in the southern portion of the area
during the summer and autumn months and request that the reopened area
should only be reopened seasonally to prevent gear conflicts.
Additionally, the commenter expressed concerns about the reopened area
frequently closing and reopening, and state that this will encourage
derby style fishing and create an unpredictable fishery that make it
difficult for fixed gear fisherman to

[[Page 75060]]

operate with little advanced notice of future closures or reopening.
Response: NMFS acknowledges that gear conflicts between fixed and
mobile gear fisherman are ongoing and sharing access to an area can be
difficult to coordinate. However, this area is already open to all
other types of bottom-tending mobile fishing gear and NMFS does not
anticipate that the additional effort will result in substantial
additional gear conflicts. Further, surfclam and ocean quahog vessels
have been operating in this area under an EFP since 2008, and NMFS is
not aware of any ongoing gear conflicts in the area. Reopening the area
on a seasonal basis, based on lobster fishing activity, would be
inequitable for the surfclam and ocean quahog fleet and could create
safety-at-sea concerns. If NMFS were to implement the reopening on a
seasonal basis as requested, the surfclam and ocean quahog fleet would
be limited to harvesting in the area in the winter and spring, at a
time when the weather offshore is subject to frequent change and is
often unsafe for commercial fishing. Further, NMFS does not anticipate
that this reopening will create a derby style fishery. The surfclam and
ocean quahog fishery is largely market driven and it is unlikely that
the market would allow for the flood of product produced by a derby-
type fishery. Additionally, there is significant coordination between
processors and harvesters in the surfclam and ocean quahog fishery and
this would also likely prevent a derby-style fishery. Because the
majority of the product in the surfclam and ocean quahog fishery is
processed, this fishery typically operates and benefits by supplying
the processers with steady and consistent quantities of surfclams and/
or ocean quahogs. Although NMFS has the authority to implement future
openings or closing, it is not anticipated that the area will be
frequently closed and reopened. The protocol was designed to prevent
this, but NMFS must retain the authority to close and reopen areas
based on environmental conditions, should problems arise beyond what
can be handled by the protocol. Therefore, we do not anticipate
frequent closures and reopening that would create a derby-style fishery
leading to excessive gear conflicts.
As for the lobster bycatch concern, while clam dredge gear may
interact to some extent with lobsters, documented incidences of bycatch
are very low. Clam dredge gear is towed at very low speeds, allowing
most species to avoid the gear, and the unique way clam dredge gear
operates typically yields little bycatch. The 1997 NMFS Northeast
Fisheries Science Center survey results support that the surfclam and
ocean quahog fishery is considered a clean fishery with regard to
incidental catch because the target species comprises well over 80
percent of the catch. No fish were caught during the survey, and only
sea scallops, representing other commercially desirable invertebrates,
were caught at around 0.5 percent of the total catch. The remaining
non-target species caught included a variety of benthic invertebrates,
including a variety of crabs, other bivalves, snails, and starfish,
among them rock crab, Jonah crab, several species of whelks, and
horseshoe crabs. Thus, it is unlikely that reopening the area will
produce substantial bycatch of lobster resulting in a negative impact
to the fishery.
Comment 3: Two of the comments in support of reopening the
Alternative A area were also concerned that NMFS should not have the
authority to close or reopen areas based on PSP testing results. The
commenters explain that the protocol was designed to prevent frequent
and routine closures and reopenings that would result in excessive
administrative burden, unnecessarily extending the time between
closures and reopenings, which would restrict harvesting.
Response: NMFS understands how the protocol operates and also
recognizes the burden involved with the administrative process of
closures and reopening, but these processes are necessary precautions
to safeguard public health. This authority existed prior to this
rulemaking and is part of the Atlantic Surfclam and Ocean Quahog FMP.
This is not a new authority being implemented as part of this action.
The Regional Administrator's authority to close or reopen an area due
to the presence of PSP is not specific to this area, and this authority
is necessary should PSP blooms occur in this or other areas. We do not
anticipate that routine and frequent closures and openings will occur
as a result of this action; rather, this authority is intended for more
large-scale and long-term closures. NMFS will continue to defer to the
FDA in matters of the public health and, should we receive advice from
the FDA, it may be necessary for NMFS to close or reopen any area to
the harvesting of surfclams and ocean quahogs to prevent contaminated
shellfish from entering the market. It is not NMFS' intention to
disregard the effectiveness of the protocol and frequently implement
routine closures and reopening; however, NMFS must maintain this
authority to protect public health.
Comment 4: The Massachusetts Department of Public Health, Bureau of
Environmental Health, and the Massachusetts Department of Fish and
Game, Division of Marine Fisheries, jointly serve as the State
Shellfish Control Authority (SSCA) in Massachusetts and submitted a
comment in support of Alternative A, provided the SSCA continues to
have the flexibility to develop individual agreements with harvesters
that may be more stringent than the minimum requirements of the testing
protocol.
Response: The protocol that this action is based on will continue
to include this flexibility, and thus the Massachusetts SSCA can
continue to require additional testing that aligns with its individual
agreements.
Comment 5: The NEFMC submitted a comment informing us that its
Habitat Oversight Committee is currently developing an Essential Fish
Habitat Omnibus Amendment, which may include potential HMAs that, if
implemented, would spatially overlap with the areas proposed for
reopening. The NEFMC also requested that we extend the comment period
on the proposed rule for an additional 60 days to allow them time
compose a more formal comment. Oceana also submitted a similar comment
requesting that the NEFMC be consulted in this matter.
Response: Due to this comment and the similar comment received from
Oceana, NMFS has modified the area that will be reopened through this
interim final rule to ensure that there is no overlap with any portion
of the potential HMAs. This will also prevent any additional Atlantic
surfclam/ocean quahog effort from being introduced into the potential
HMAs while they are still being developed. However, NMFS chose not to
extend the proposed rule comment period for an additional 60 days. The
MAFMC and the surfclam and ocean quahog industry has requested that
this area be reopened by the start of the fishing year on January 1,
2013, and extending the comment period for an additional 60 days would
not allow sufficient time to implement this action by January 1. To
allow the habitat amendment to be completed, while also allowing the
Atlantic surfclam/ocean quahog fleet to access the reopened area, NMFS
is publishing this action as an interim final rule, which allows for an
additional comment period after the modified area is reopened. After
the habitat amendment has been completed, and after NMFS reviews any
additional comments on the measures in this interim final rule, NMFS
may

[[Page 75061]]

reconsider the reopened area and will publish a final rule in the
Federal Register implementing the final area.
Comment 6: Oceana provided a comment that does not directly oppose
any of the area alternatives, but raised a number of concerns. They
stated that NMFS does not have the authority to implement this action,
and that the action should have been initiated by the MAFMC and should
include the entire Council process. The commenter also alleged that
NMFS intentionally placed the 30-day comment period between two Council
meetings, which prevented the Councils or their committees from
commenting.
Oceana also requested that the National Environmental Policy Act
(NEPA) analysis accompanying this action be an environmental impact
statement (EIS) rather than an EA, stating that NEPA requires that all
significant actions go through the public comment, scrutiny, and
analysis of an EIS. Their rationale for this is that hydraulic clam
dredge fishing gear is among the most destructive gear types and will
impact EFH as well as the existing fisheries on GB. The commenter also
stated that, because Atlantic surfclams and ocean quahog resources are
abundant on GB, the resulting high catch rates will impact the
administration of the fishery, including how the fishery is prosecuted,
the quota specifications, and overfishing definitions.
Response: In regards to the authority that NMFS is using to take
this action, Oceana's comment broadly cites the regulations at Sec.
648.76(c), but their comment quotes the regulations at Sec.
648.76(c)(2), which pertain only to NMFS's authority in implementing
short-term emergency closures to prevent adverse effects to public
health. However, the authority for this action is found at Sec.
648.76(c)(1). This section pertains to the process for reopening areas
and also provides the Regional Administrator with the authority to
close or reopen an area provided NMFS publish a Federal Register notice
with a 30-day comment period. NMFS published a proposed rule for this
action in the Federal Register on August 31, 2012 (77 FR 53164), with a
30-day comment period that ended on October 1, 2012. Therefore, NMFS is
authorized to take this action separate from the MAFMC under the
Regional Administrator's authority at Sec. 648.76(c)(1). In fact, this
action was initiated at the specific request of the MAFMC. Further, the
comment period for this action was not deliberately placed between
Council meetings. To meet the January 1, 2013, deadline for this
action, as requested by the industry and the MAFMC, the comment period
needed to be initiated as soon as the proposed rule was fully
developed. The 30-day comment period for this proposed rule is the
typical length of a comment period for FMP frameworks and amendments.
The NEFMC did in fact provide comment on the proposed rule, and the
area being reopened is based on the NEFMC's comment.
In response to Oceana's request to complete an EIS rather than an
EA, NMFS does not agree that an EIS is necessary for this action. The
EA completed for this action is fully compliant with the applicable
NEPA requirements and the analysis resulted in a finding of no
significant impact, consistent with all applicable guidance and the
regulations implementing NEPA; therefore, an EIS is not required and
none has been prepared. The commenter's concerns are all addressed in
the EA and are also discussed below.
Alternative A has been revised in response to comments received. It
excludes the potential Georges Shoal Habitat Areas, which were
previously included in the draft EA, as well as Closed Area I and
Closed Area II. In regards to Oceana's concern about impacts to other
fisheries that occur on GB, the Atlantic surfclam and ocean quahog
fishery is considered a clean fishery because the target species
comprise well over 80 percent of the catches. Based upon scientific
surveys, bycatch typically consists of scallops and other benthic
invertebrates. The EA found that reopening the area will result in a
net reduction of bycatch, temporarily, for the entire fishery due to
the fewer dredges and shorter dredge time anticipated in an area of
high biomass such as GB. This fishery is managed under an IFQ, so total
fishing effort is capped by the IFQ allocated to the fishery. Because
there would be no increase in harvesting permitted, reopening the area
would have negligible impacts to the non-target and bycatch species. It
is, in addition, highly unlikely that this action will cause any
additional gear conflicts with other types of mobile gear, but NMFS
acknowledges that gear conflicts between fixed and mobile gear
fishermen can be challenging to resolve. However, this area is open
already to all other types of bottom-tending mobile gear, including
scallop dredges and otter trawls, and NMFS does not anticipate that the
additional effort will result in substantial additional gear conflicts
with fixed gear fishermen. Further, several surfclam/ocean quahog
vessels have been operating in this area under an EFP since 2008, and
NMFS is not aware of any ongoing gear conflicts in the area.
Concerning impacts to EFH from hydraulic clam dredge gear, the EA
contains a thorough description of hydraulic dredge gear, including a
detailed analysis of the impacts to EFH. Other types of bottom-tending
gear are currently also used in the subject area, including scallop
dredges, trawls, sink gill nets, longlines, pots, and traps. Most of
the area for clam dredging where the fishing activity is expected to be
concentrated 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, it was determined that the use of this gear would not have
significant impacts on EFH in the affected area, because the impacts
are minimal or temporary (i.e., ones that are limited in duration and
that allow the particular environment to recover without measurable
impact). For these same reasons (i.e., because this habitat is highly
energetic and recovers relatively quickly), the cumulative impacts from
the existing use of bottom trawling and scallop dredging gear together
with the expected addition of hydraulic clam dredge gear is also not
expected to be significant.
In deeper water, in the southern part of the Alternative A area,
habitat recovery times may be longer and the habitat impacts may be
more substantial. In addition, because the deeper, southern portion of
this area is currently subjected to some bottom trawling and scallop
dredging, there could be some cumulative impacts resulting from the
three gears being used together in this area. However, because the
biomass of surfclams and ocean quahogs is much higher on GB than on the
traditional clam fishing grounds in the Mid-Atlantic, hydraulic dredge
vessels that move from these grounds to GB to take advantage of the
higher concentrations of clams would require less fishing time to
achieve their catch quotas and, as a result, the cumulative area of
seafloor swept throughout the range of the fishery would very likely be
substantially reduced. The positive effect of the net reduction in clam
dredging effort would, in all likelihood, mitigate any cumulative
impacts of

[[Page 75062]]

using all three mobile, bottom-tending gears in the fairly small
southern portion of the area. Thus, because quotas are not changing as
a result of this action and because catch rates on GB exceed those in
the Mid-Atlantic, any shift of clam dredging effort on to GB is
expected overall to minimize any adverse direct, indirect, or
cumulative impacts of this action on EFH. This conclusion supports a
FONSI and, therefore, an EIS is not required. Further analysis of the
impacts to the physical environment and habitat including EFH, are
discussed at length in sections 5.0 and 6.0 of the EA prepared for this
action.
NMFS acknowledges that reopening a portion of the revised GB Closed
Area may cause some fundamental shifts in the administration and
operations of the fishery; however, the EA prepared for this action
includes these considerations in the economic analysis. The area being
reopened with this rule is not expected to have an adverse impact on
the economy. The reopened area provides a larger area open to the
harvest of surfclams and ocean quahogs. In addition, the fishery is
managed under an individual transferable quota, and this action does
not change the quota. Furthermore, the amount of surfclams and ocean
quahogs harvested in the fishery is largely driven by market demand;
therefore, it is unlikely that there will be a substantial increase in
landings and revenue. The entire allocated quota available for
surfclams has not been harvested since 2001. In fishing year 2011, the
quota harvested for surfclams and ocean quahog was the lowest to date,
71 percent and 52 percent, respectively. This is another indicator that
the fishery is market-limited. Overall, the reopened area is expected
to provide a positive economic impact due to the increased area and
target species biomass available to harvest surfclam and ocean quahogs,
but, because overall catch is not increasing, it is not expected that
the positive economic impact will be substantial.
The majority of surfclams harvested in Federal waters are landed in
New Jersey and trucked to Delaware for processing. New Jersey, however,
has already authorized landings of clams harvested from the GB area
through an EFP that NMFS issued. The EFP authorizes vessels to
participate in shellfish harvesting to continue to test the recently
approved sampling protocol that was developed by state and Federal
regulatory agencies to test for presence of saxitoxins in shellfish.
Since New Jersey, Delaware, Massachusetts, and Maine have already
authorized landings and processing of clams harvested from the revised
GB Closed Area, this action is not expected to have a significant
impact on major landing ports and processing plants.

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.
Pursuant to the Administrative Procedures Act (APA), 5 U.S.C.
553(d)(1), NMFS waives the 30-day delay in effectiveness of this rule
because it is a substantive rule that relieves a restriction. This
final rule will reopen an area that has been closed to the harvest of
surfclams and ocean quahogs since 1990 due to red tide blooms that
cause PSP. 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, NMFS finds good cause to waive the
30-day delay in effectiveness under 5 U.S.C. 553(d)(3). The GB 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 the GB Closed Area and would continue to put pressure on
Mid-Atlantic stocks. Waiving the 30-day delay would allow 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 would continue to limit vessels to harvesting in the Mid-
Atlantic region and could result in continued loss of revenue for the
Atlantic surfclam and ocean quahog fishing fleet.
Moreover, the industry and the MAFMC have requested that the
reopening become effective by the start of the 2013 Atlantic surfclam
and ocean quahog fishing year on January 1, 2013. A 30-day delay in
effectiveness would result in this action not being implemented by
January 1, as requested. Because the industry and MAFMC have requested
that the area be reopened by January 1, regulated entities are aware of
this action and have likely already begun preparing for the area to be
reopened on January 1. Therefore, a 30-day delay in effectiveness would
not serve any beneficial purpose.
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 at the proposed rule stage 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 that was published on August 31, 2012 (77 FR 53163) and
is not repeated here. No comments were received on this certification
and no new information has been obtained that would change this
determination. As a result, a final regulatory flexibility analysis is
not required and none has been prepared.
NMFS prepared an EA for this action that analyzes the impacts of
this rule. A copy of the EA is available from the Federal e-Rulemaking
portal http://www.regulations.gov. Type ``NOAA-NMFS-2012-0121'' in the
Enter Keyword or ID field and click search. A copy of the EA is also
available upon request from the NMFS Northeast Regional Administrator,
John K. Bullard (see ADDRESSES).

Reporting, Recordkeeping, and Other Compliance Requirements

This final rule contains reporting and recordkeeping requirements
and associated information collections subject to the Paperwork
Reduction Act (PRA) that have been previously approved by OMB under
control numbers 0648-0202 and 0648-0240. Measures implemented by this
final rule include provisions that require either new or revised
collection-of-information requirements. The protocol includes a
detailed procedure outlining how shellfish are to be harvested, tested,
and handled. The PSP testing protocol includes the following
requirements that require analysis under the Paperwork Reduction Act:
Submission of concurrence from the state of landing; maintain and
submit harvest records; compile and submit laboratory results; create
and maintain a written onboard lot segregation plan; and provide
notification prior to unloading.
Additionally, to monitor and control the harvest of surfclams and
ocean

[[Page 75063]]

quahogs from the area, and to ensure vessels adhere to the protocol,
vessels fishing in the area are required to apply for and obtain a LOA
from NMFS. The LOA will help to ensure that vessels are adhering to the
regulations for harvesting within the area and provides a mechanism for
NMFS to restrict harvesting in the area should a vessel not comply with
the terms and conditions of the LOA and/or the PSP testing protocol.
The full protocol is available for viewing at www.nero.noaa.gov/sfd/clams/ApprovedProtocol.pdf.
In regards to the requirement to obtain an LOA, in 2011, there were
47 Federal open-access surfclam and/or ocean quahog permitted vessels
that landed surfclams and/or ocean quahogs that may wish to fish in the
area proposed to be reopened. Each vessel may apply up to once a year,
for a maximum of 47 applications. It is expected that each application
will take 5 min to complete, for a fleet maximum of 4 hr. There is no
additional public cost associated with this change as the application
will be submitted with the previously existing annual permit renewal
package.
In regards to the information collection required under the
protocol, if all of the permitted vessels in 2011 fished in the area,
there would be a total of 47 entities, as well as 11 states, that would
be required to adhere to the terms and conditions of the PSP testing
protocol. While the PSP testing protocol outlines what is required,
there will likely be differences in the complexity of the documents as
well as varying methods of submission. For this PRA analysis, it is
assumed that the traditional method of submission will be used,
physical mail at 45 cents per submission; however, it is likely that
many submissions will be completed electronically and, therefore, the
overall cost would be reduced.
The testing protocol requires numerous elements that contain
collection of information requirements, including elements that are
submitted to NMFS, as well as to state and private entities. The
submission of concurrence from state of landing element is required
only of the state, which total 11 entities. This submission will be in
the form of an annual written letter, with a total time burden estimate
of 11 hr (11 submissions x 1 hr) and would cost $5 (11 submissions x
$0.45).
The remainder of the requirements in the protocol apply to
individual vessels, and is based on the maximum number of trips that
occurred in the area in 2011 (46 trips). Three of these elements
require document submission--one of which is an annual submission, and
the other two that are required on each trip. The result is 4,370
submissions (((47 x 46) x 2) + 46), with a total public cost burden of
$1,967 (4,370 x $0.45). The offload notification requirement does not
impose any additional costs, as the notification will be completed
through a pre-existing email or cellular phone account and is not
required to be submitted in writing.
It is estimated that both the requirement to submit and maintain
harvest records and compile and submit laboratory test results would
take 30 min each to complete. Based on the number of anticipated trips
into the area, there would be 4,324 submissions and a public burden of
2,162 hr (4,324 submissions x 30 min). The element to create and
maintain a written onboard lot segregation plan is required annually
and will take approximately 60 min to complete for a public burden of
47 hr (47 submissions x 1 hr). The notification element is required on
each trip and is estimated to take 5 min per notification, resulting in
180 hr of burden (2,162 notifications x 5 min). The total resulting
time burden to the public from all of the requirements to fish in the
reopened portion of the GB Closed Area is 2,404 hr (4 + 11 + 2,162 + 47
+ 180).
These estimates include the time required for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Notwithstanding any other provision of the
law, no person is required to respond to, and no person shall be
subject to 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.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: December 13, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
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. 648.14, paragraph (a)(10)(v) is added to read as follows:

Sec. 648.14 Prohibitions.

(a) * * *
(10) * * *
(v) Fish for, harvest, catch, possess, or attempt to fish for,
harvest, catch, or possess Atlantic surfclams and ocean quahogs from
the reopened portion of the Georges Bank Closed Area, as defined in
Sec. 648.76(a)(4), unless issued a Letter of Authorization, and
fishing under the appropriate VMS declaration and under the terms and
conditions of the PSP testing protocol, as specified in Sec.
648.76(a)(4)(i).
* * * * *

0
3. 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 reopened to harvest surfclams and ocean quahogs
provided the vessel complies with the requirements specified in
paragraph (a)(4)(i) of this section. The reopened portion of the
Georges Bank Closed Area is defined by straight lines connecting the
following points in the order stated:

(i) Requirements for Vessels Fishing in the Reopened 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

[[Page 75064]]

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. 2012-30589 Filed 12-18-12; 8:45 am]
BILLING CODE 3510-22-P