[Federal Register Volume 79, Number 129 (Monday, July 7, 2014)]
[Proposed Rules]
[Pages 38274-38275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15803]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 140529461-4526-01]
RIN 0648-BE26


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: Proposed rule; request for comments.

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SUMMARY: Based on request from the U.S. Food and Drug Administration, 
NMFS proposes to lift the closure area referred to as the Northern 
Temporary Paralytic Shellfish Poisoning Closed Area for bivalve 
harvesting. NMFS takes this action because this area has not been 
subject to a toxic algal bloom for several years and testing of bivalve 
shellfish has demonstrated toxin levels well below those known to cause 
human illness. In addition, the U.S. Food and Drug Administration has 
developed an agreement with the Commonwealth of Massachusetts to 
conduct paralytic shellfish poisoning monitoring of bivalves from the 
area in accordance with currently accepted paralytic shellfish 
poisoning testing procedures.

DATES: Comments must be received on this action by July 22, 2014.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2014-0073, 
by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0073, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: John K. Bullard, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope: ``Comments on Lift PSP 
Closure.''
    Instructions: All comments received are part of the public record 
and will generally be posted to www.regulations.gov without change. All 
Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted via Microsoft Word, Microsoft Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Jason Berthiaume, Fishery Management 
Specialist, phone: (978) 281-9177, or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    In 2005, at the request of the U.S. Food and Drug Administration 
(FDA), NOAA's National Marine Fisheries Service (NMFS) closed an area 
of Federal waters off the coasts of New Hampshire and Massachusetts to 
fishing for bivalve shellfish due to the presence in those waters of 
the toxins that cause paralytic shellfish poisoning (PSP). Shellfish 
contaminated with the toxin, if eaten in large enough quantity, can 
cause illness or death from PSP.
    The closure was modified a number of times from 2005-2008, and the 
remaining closure was subsequently extended from 2008 until 2013. 
Beginning in 2014, the closure also included a prohibition on the 
harvest of gastropods.
    Recently, NMFS, the FDA, the clam industry, and the Massachusetts 
Division of Marine Fisheries (DMF) investigated whether this closure is 
still warranted, and on May 19, 2014, the FDA sent NMFS a letter 
requesting that we reopen the area known as the Northern Temporary 
Paralytic Shellfish Poisoning (PSP) Closed Area for bivalve harvesting. 
This request is based on the premise that the area has not been subject 
to a toxic algal bloom for several years and testing of bivalve 
shellfish has demonstrated toxin levels well below those known to cause 
human illness. In addition, the FDA has developed an agreement with the 
Commonwealth of Massachusetts to conduct PSP monitoring of bivalves 
from the area in accordance with currently accepted PSP testing 
procedures. If the closure is lifted, DMF would test the reopened 
waters, and if the results yield samples that exceed the threshold for 
public safety, DMF would inform us to that effect, and we would work 
with the FDA to reinstate the closure.
    If this action is implemented, NMFS would reopen the area referred 
to as the Northern Temporary PSP Closed Area for bivalve harvesting. 
This includes the fisheries for Atlantic surfclam and ocean

[[Page 38275]]

quahog, as well as mussels. The area would remain closed to the harvest 
of whole or roe-on scallops and gastropods. Whole and roe-on scallops 
and gastropods are believed to be more susceptible to PSP and may 
accumulate and retain much higher levels of toxicity. In addition, 
sufficient data do not exist to demonstrate that it would be safe to 
lift the closure for gastropods or whole and roe-on scallops. NMFS, the 
FDA, and DMF are working with the fishing industry to conduct a 
research project that would collect samples to help determine whether 
the area could also be opened to whole or roe-on scallops and 
gastropods. NMFS is seeking public comments on lifting the closure for 
bivalves as well as information regarding whole or roe-on scallops and 
gastropods and PSP in the area.
    The areas defined at 50 CFR 648.81(d) and (e), referred to as the 
Cashes Ledge and the Western Gulf of Maine Essential Fish Habitat Areas 
(EFH), respectively, overlap with the area that would be reopened. 
Theses overlapping EFH areas would remain closed to hydraulic clam 
dredge gear.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
Assistant Administrator for Fisheries, NOAA, has determined that this 
proposed rule is consistent with the Atlantic Surfclam and Ocean Quahog 
Fishery Management Plan, other provisions of the Magnuson-Stevens Act, 
and other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be 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 (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification is as follows.
    The proposed measures would only affect vessels holding an active 
Federal open access surfclam and/or ocean quahog permit. The SBA 
defines a small commercial shellfish fishing entity as a firm with 
gross annual receipts not exceeding $5 million. In 2012, a total of 42 
vessels reported harvesting surfclams and/or ocean quahogs from Federal 
waters under the Individual Fishing Quota system. In addition, 12 
vessels participated in the limited access Maine ocean quahog fishery, 
for a total of 54 participants in 2012. Average 2012 gross income was 
$950,000 per vessel. Each vessel in this analysis is treated as a 
single entity for purposes of size determination and impact assessment. 
All 54 commercial fishing entities fall below the SBA size threshold 
for small commercial shellfish fishing entities, and thus would be 
considered small entities for the purposes of this analysis.
    This rule, if implemented, is expected to have only a slightly 
beneficial economic impact on affected entities. The surfclam and ocean 
quahog fishery is managed under an Individual Transferable Quota (ITQ) 
system, and, since overall quotas are not being changed as a result of 
this action, no additional harvest would be permitted with this action. 
However, participating vessels would be able to fish in the Northern 
Temporary Paralytic Shellfish Poisoning (PSP) Closed Area, in addition 
to the existing areas open to the harvest of surfclams and ocean 
quahogs. Those vessels that choose to fish in the area proposed to be 
opened may experience a reduction in operational costs due to the 
area's relative close proximity to major fishing ports. As a result, 
these vessels could see some positive economic impacts. However, these 
benefits are not expected to be significant as this fishery is 
typically market limited and, as mentioned above, the fishery is 
managed under an ITQ, so it is not expected that there would be an 
increase in overall landings beyond what is allowed under the ITQ.
    In addition, due to the seasonal variability of PSP toxin levels, 
any or all of the area associated with this action could open or close 
based on PSP conditions. Given the uncertainty as to whether the area 
would remain open, and since the fishery is managed under an ITQ 
system, it is not anticipated that there would be an overall increase 
in participation in the surfclam and ocean quahog fishery due to the 
opening of this area. Therefore, because this action only proposes to 
reopen an area that has previously been closed, and because no net 
change in fishing effort, participation in the fishery, or fishery 
expenses is expected, this action will not have a significant economic 
effect on a substantial number of small entities.

Reporting and Recordkeeping Requirements

    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements. This proposed rule does not duplicate, 
overlap, or conflict with other Federal rules.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 1, 2014.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to read 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)(iii) is revised to read as 
follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (10) * * *
    (iii) Fish for, harvest, catch, possess or attempt to fish for, 
harvest, catch, or possess any any sea scallops, except for sea 
scallops harvested only for adductor muscles and shucked at sea and any 
gastropod species, including whelks, conchs, and carnivorous snails, 
unless issued and possessing on board a Letter of Authorization (LOA) 
from the Regional Administrator authorizing the collection of shellfish 
and/or gastropods for biological sampling and operating under the terms 
and conditions of said LOA, in the area of the U.S. Exclusive Economic 
Zone bound by the following coordinates in the order stated:
    (A) 43[deg]00' N. lat., 71[deg]00' W. long.;
    (B) 43[deg]00' N. lat., 69[deg]00' W. long.;
    (C) 41[deg]39' N. lat., 69[deg]00' W. long.;
    (D) 41[deg]39' N. lat., 71[deg]00' W. long.; and then ending at the 
first point.
* * * * *
[FR Doc. 2014-15803 Filed 7-3-14; 8:45 am]
BILLING CODE 3510-22-P