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


=======================================================================
-----------------------------------------------------------------------

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.

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

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:

------------------------------------------------------------------------
             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'
------------------------------------------------------------------------

     (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