[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Rules and Regulations]
[Pages 59150-59152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23324]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 140529461-4795-02]
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: Final rule.
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SUMMARY: Based on a request from the U.S. Food and Drug Administration,
NMFS is lifting the closure area referred to as the Northern Temporary
Paralytic Shellfish Poisoning Closed Area for the harvest of bivalve
molluscan shellfish. NMFS is taking 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 are well below those
known to cause human illness. This action is expected to provide
additional fishing opportunity for bivalves in the Gulf of Maine.
DATES: This rule is effective October 1, 2014 through December 31,
2014.
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), 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) pursuant to section 305(c)(3) of the Magnuson-Stevens
Fishery Conservation and Management Act. Shellfish contaminated with
the toxin, if eaten in large enough quantity, can cause illness or
death from PSP. NMFS modified the closure area several times from 2005-
2008, and subsequently continued the
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closure through 2013. Beginning in 2014, NMFS also prohibited the
harvest of gastropods (whelks/conchs) in the closed area.
Recently, NMFS, the FDA, the clam industry, and the Massachusetts
Division of Marine Fisheries (MA DMF) investigated whether this closure
is still warranted. On May 19, 2014, the FDA requested that NMFS reopen
the area known as the Northern Temporary PSP Closed Area for bivalve
harvesting. This request is based on the premise that the closed area
has not been subject to a toxic algal bloom for several years, and that
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. MA DMF agreed to test the reopened
waters to determine whether samples of bivalve shellfish harvested from
the closed area exceed the threshold for public safety. The MA DMF will
inform NMFS if samples from the closed area exceed the threshold for
public safety, and we would work with the FDA to reinstate the closure,
if necessary.
Approved Measures
This action reopens the area referred to as the Northern Temporary
PSP Closed Area to bivalve harvesting in the Atlantic surfclam, ocean
quahog, mussels, and other bivalve fisheries. 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. These overlapping EFH areas
remain closed to hydraulic clam dredge gear. The area remains 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 MA DMF are working with the fishing industry to
collect samples to help determine whether the area could also be opened
to whole or roe-on scallops and gastropods in the future.
Comments and Responses
NMFS published a proposed rule in the Federal Register on July 7,
2014 (79 FR 38274), and accepted public comments until July 22, 2014.
We received 17 comments: 11 in support of lifting the closure; 5
opposed; and a comment from the New England Fishery Management Council
requesting that we extend the comment period.
Comments Received in Support of Lifting the Closure: Comments
received in support of lifting the closure were from the surfclam
industry including vessel captains, crew members, and dealers. These
comments were similar in nature, and explained that it would be
beneficial for the industry to be able to access resources in the area.
These commenters requested that we open the area as soon as possible,
suggesting that the closure should have been lifted a long time ago.
Response: Because there have been no recent occurrence of PSP
causing toxins with the area, this action reopens the Northern
Temporary PSP Closed Area for Atlantic surfclam, ocean quahog, mussel,
and other bivalves. Sufficient testing protocols have been established
to determine if samples of bivalve shellfish exceed the threshold for
public safety.
Comments Received Opposing Lifting the Closure: We received
comments in opposition to lifting the closure from surfclam dealers and
business interests, primarily the Mid-Atlantic and offshore components
of the fishery. These commenters did not support the reopening because
they believe that the proposed testing procedure is less intensive than
the testing that is currently required in the recently reopened
offshore Georges Bank area. The commenters are concerned that the
proposed protocol is not rigorous enough, and could potentially allow
surfclams into the market that are not safe for human consumption,
which would damage the surfclam market. They also raised equity
concerns in that the costs of the George Banks testing are funded by
the surfclam industry; the testing protocols proposed in this area
would be funded and carried out by MA DMF.
Response: While the comments in opposition to lifting the closure
appear to make some valid points, there is a rationale for the
differences in the testing procedures for the offshore versus inshore
areas. The protocol used on Georges Bank was evaluated extensively via
a pilot study prior to being approved as a biotoxin management strategy
for this specific purpose. The FDA states that there may be
distinctions between the toxin profiles in offshore waters versus
inshore areas and that the offshore protocol would need to be evaluated
for each specific purpose, including extending its application to
different geographical regions and/or different species of molluscs.
The offshore Georges Bank protocol has not yet been used in inshore
areas and, as such, it is not known if the Georges Bank testing
protocol would be adequate for testing in the inshore areas, including
the Northern PSP Area. However, there are efforts underway that would
evaluate the extension of the protocol. The testing procedure that we
proposed in this rule reflects the testing that is commonly done in
state waters, and is readily accepted and proven to work for inshore
waters. In considering these comments, the FDA and MA DMF remain
confident that the testing procedure we proposed is adequate to ensure
public safety while allowing bivalves to be harvested from the Northern
Temporary PSP Closed Area.
In addition, the fishery that would be carried out in the inshore
Northern Temporary PSP Closed Area would be done at a much smaller
scale than the offshore Georges Bank area. As such, it would likely not
be feasible at this time to use the Georges Bank protocol in the
Northern PSP Area. The offshore protocol includes onboard testing done
by trained crew members, product segregation, acquiring additional
permits, and dockside laboratory testing to be paid for by the
industry. Given the smaller scale fishery that would likely occur in
the Northern PSP Area, MA DMF is capable of funding and conducting
testing of the inshore areas as we proposed based on the expected
effort in that area. However, MA DMF would be not capable of doing the
testing for the offshore Georges Bank area given the large scale of
that type of operation.
Comment Requesting an Extension on the Comment Period: The New
England Fishery Management Council submitted a comment requesting that
we extend the comment period until after its September 30-October 2,
2014, meeting. The Council expressed concern about potential impacts on
species that might be vital to the recovery of important groundfish
stocks such as Gulf of Maine cod. The Council is concerned that there
may be gear impacts specific to this area that have not been evaluated
with respect to the harvest of a variety of bivalve species.
Response: We do not think it is necessary to extend the comment
period. The Council's rationale for extending is largely due to habitat
concerns. However, the area reopened as part of this action is already
open to mobile bottom-tending gear such as scallop dredge gear. Because
we do not anticipate a lot of clam fishing in the area, we do not
expect significant additional habitat impacts. In addition,
[[Page 59152]]
the PSP area does not overlap with any currently pending habitat
management areas under consideration in the Council's Omnibus Habitat
Amendment. The regulations prohibiting mobile bottom-tending gear
fishing in the current Western Gulf of Maine Closure Area would
continue to apply to clam dredges. It is also impractical to delay this
action due to the timelines associated with the rulemaking process.
Extending the comment period as suggested could result in the closure
not being lifted until close to the end of the year, and just before
the closure is set to expire anyway. This would unnecessarily reduce
the potential economic benefit of reopening the area, and would not
likely result in additional information that would affect efforts to
protect bottom habitat under other Council initiatives.
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
Fishery Management Plan, other provisions of the Magnuson-Stevens Act,
and other applicable law.
Pursuant to the APA, 5 U.S.C. 553(d)(1), NMFS has determined that
good cause exists to waive the 30-day delay in effectiveness of this
rule because delaying the effectiveness of this rule is contrary to the
public interest. This final rule will reopen an area that has been
closed to the harvest of surfclams and ocean quahogs since 2005 due to
red tide blooms that cause PSP. Recent testing in the Northern
Temporary PSP Closed Area has demonstrated that PSP toxin levels were
below the regulatory limit established for public health safety.
Therefore, continued closure of the area may not be necessary and could
unnecessarily restrict Atlantic surfclam and ocean quahog fishing. This
closure spans a large portion of the inshore coast of New England,
which has prevented this fishery from occurring within the area. As a
result, harvesting has been 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 area, and would continue to put pressure on Mid-Atlantic stocks.
Waiving the 30-day delay would allow the 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. Thus, a delay in effectiveness could
result in continued loss of revenue for the Atlantic surfclam and ocean
quahog fishing fleet. In addition, waiving the 30-day delay in
effectiveness will not have a negative impact on any entities, as there
are no new compliance requirements or other burdens placed on the
fishing community with this rule. Therefore, because this action
relieves the industry of regulations, NMFS has determined that good
cause exists to waive the 30-day delay in effectiveness of this rule.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule does not contain policies with federalism or
``takings'' implications, as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
This action does not contain any new recordkeeping or reporting
requirements, and does not impose any additional costs to affected
vessels.
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 (July 7, 2014; 79 FR 38274) 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.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: September 25, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
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, effective October 1, 2014 through December 31,
2014, paragraph (a)(10)(iii) is suspended and paragraph (a)(10)(vi) is
added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(10)* * *
(vi) Fish for, harvest, catch, possess or attempt to fish for,
harvest, catch, or possess 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. 2014-23324 Filed 9-30-14; 8:45 am]
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