[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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

[[Page 59151]]

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]
BILLING CODE 3510-22-P