[Federal Register Volume 75, Number 125 (Wednesday, June 30, 2010)]
[Proposed Rules]
[Pages 37745-37748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15770]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100526227-0256-01]
RIN 0648-AY71
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; 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: NMFS proposes to open a portion of the Georges Bank (GB)
Closed Area to the harvest of Atlantic surfclams and ocean quahogs,
which has been closed since 1990 due to the presence of toxins known to
cause paralytic shellfish poisoning (PSP). The U.S. Food and Drug
Administration (FDA) has indicated that recent testing of clams
collected from this portion of the GB Closed Area, known as Cultivator
Shoal, has demonstrated that PSP toxin levels are well below the
regulatory limit established for public health safety. As a result, the
FDA has determined that harvesting of surfclams and ocean quahogs for
human consumption, within this portion of the GB Closed Area, is safe.
DATES: Written comments must be received no later than 5 p.m. eastern
standard time, on July 30, 2010.
ADDRESSES: You may submit comments, identified by RIN number 0648-AY71,
by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking portal http://www.regulations.gov.
Fax: (978) 281-9135, Attn: Anna Macan.
Mail: Patricia A. Kurkul, Regional Administrator, NMFS,
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA
01930. Mark the outside of the envelope: ``Comments on Proposed Opening
of GB PSP Closed Area.''
Instructions: All comments received are part of the public record
and will generally be posted to http://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: Anna Macan, Fishery Management
Specialist, phone (978) 281-9165, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
The GB Closed Area, located in the Exclusive Economic Zone east of
69[deg]00' W. longitude and south of 42[deg]20' N. latitude (see
attachment), has been closed to the harvest of surfclams and ocean
quahogs since 1990 due to red tide blooms that cause PSP. The closure
was implemented based on advice from the FDA, after samples tested
positive for toxins (saxotoxins) that cause PSP. PSP toxins are
produced by the alga, Alexandrium fundyense, that can form blooms
commonly referred to as red tides, or harmful algal blooms (HABs), and
can produce toxins that 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 GB Closed Area for
the presence of PSP-causing toxins, the closure was made permanent in
1999, under Amendment 12 to the Surfclam and Ocean Quahogs Fishery
Management Plan (FMP). In addition, NMFS also established temporary PSP
closure areas, specified at Sec. 648.14(a)(10)(iii) and (iv), that
have been in effect since 2005. NMFS has relied on the FDA's advice to
open/close
[[Page 37746]]
or shift these temporary PSP closure areas. Since the implementation of
the permanent closure, NOAA's National Ocean Service (NOS) 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 of southern New England. The
FDA, in consultation with NMFS and several states, also developed the
Protocol for Onboard Screening and Dockside Testing in Molluscan
Shellfish (Protocol) that is designed to test and verify that clams
harvested from the GB are safe. NMFS first issued an Exempted Fishing
Permit (EFP) on January 9, 2008, to Truex Enterprises of New Bedford,
MA, to allow for testing the efficacy of harvesting surfclams and ocean
quahogs from a portion of the GB Closed Area using the Protocol. The
EFP was subsequently renewed on January 22, 2009, and December 10,
2009. As of May 6, 2010, five commercial Surfclam trips for the 2010
fishing year have been conducted under the EFP, in which at-sea and
dockside sampling conducted in accordance with the Protocol tested
negative for PSP toxin levels, thus permitting the surfclams harvested
from these trips to enter the food market.
On January 21, 2010, NMFS received a letter from the FDA requesting
NMFS open a portion of the GB Closed Area, as specified at 50 CFR
648.73(a), to the harvest of surfclams and ocean quahogs for human
consumption. The FDA has indicated that recent testing of clams from
this portion of the GB Closed Area, known as Cultivator Shoal, has
demonstrated that PSP toxin levels are well below the regulatory limit
established for public health safety. This information contributed to
the FDA's determination that harvesting of surfclams and ocean quahogs
for human consumption from the area described below is safe.
The FDA requests, and NMFS proposes, to open the Federal waters,
bounded by the coordinates listed in the Table 1. The remaining portion
of the GB Closure Area would remain closed.
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About a month after NMFS received the letter from the FDA, NOS
issued a forecast, on February 24, 2010, that the NOAA-funded Gulf of
Maine Toxicity Project predicted a larger regional HAB for the spring
and summer of 2010. NMFS, however, defers to the FDA in matters of the
public health and has relied on their advice to initially implement the
GB Closure, and has also been relying on the FDA's advice to open/close
or shift the temporary PSP closure areas specified at Sec.
648.14(a)(10)(iii) and (iv) that have been in effect since 2005. Since
NMFS defers to the FDA in matters of the public health, NMFS proposes
to open the portion of the GB Closed Area, known as Cultivator Shoal,
to the harvest of surfclams and ocean quahogs, under its authority at
Sec. 648.73(c). NMFS will, however, continue to observe the NOS
forecast and, in addition to seeking public comment, will consult with
both the FDA and NOS prior to making a final decision on whether to re-
open this area.
In addition, while NMFS proposes to re-open a portion of the GB
Closed Area as requested by the FDA, NMFS also recognizes that red-tide
events can vary inter-annually. For that reason, NMFS has prepared an
environmental assessment (EA), which analyzes the proposed re-opening
and an additional larger area within the GB Closed Area, to cover the
possibility that the FDA's proposed opening could shift or vary,
depending on a change in conditions. Given the temporal nature of PSP
conditions, NMFS is seeking public comment on whether this proposed
opening should be made effective.
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 Surfclam and Ocean Quahog FMP,
other provisions of the Magnuson-Stevens Act, and other applicable law,
subject to further consideration after public comment.
NMFS prepared a draft Environmental Assessment (EA) for this
action, which analyzes the impacts of this proposed rule. A copy of the
draft EA is available from the Federal e-Rulemaking portal http://www.regulations.gov. Type ``NOAA-NMFS-2010-0104'' in the Enter Keyword
or ID field and click search. A copy of the EA is also available upon
request from NMFS Northeast Regional Administrator, Patricia A. Kurkul
(see ADDRESSES).
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 that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The proposed measures could affect any vessel holding an active
Federal open access surfclam and/or ocean quahog permit. In 2009,
there were 47 Federal open-access surfclam and/or ocean quahog
permitted vessels that landed surfclams and/or ocean quahogs. All of
these vessels fall within the definition of a small business. This
action proposes to open an area that has previously been closed.
Since the area is well offshore, it is likely that the larger
vessels (i.e., vessels greater than 90 ft (27.43 meters) in length)
would more likely target the surfclams and ocean quahogs from the GB
Closed Area. 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, there would
be no net change in harvest. Participating vessels, regardless of
size, would still be able to fish in any of the existing areas open
to the harvest of surfclams and ocean quahogs. Those vessels that
may fish in the area proposed to be opened may experience increased
operational costs, if they choose to fish there, however, these
costs, may be offset due to increased productivity in effort because
of greater abundance of surfclams and ocean quahogs in the GB Closed
Area. In addition, for the past 3 years, NMFS has issued an Exempted
Fishing Permit (EFP) for one vessel to harvest surfclams using the
FDA-approved Protocol for Onboard Screening and Dockside Tesing in
Molluscan Shellfish. Since NMFS has issued an EFP to harvest
surfclams within the GB Closed Area, and given their higher value,
it is likely that vessels would continue this trend in targeting
surfclams from the GB Closed Area. Due to the seasonal variability
of PSP toxin levels, it is likely that any or all of the areas
associated with this action may open or close based on PSP
conditions. Given this uncertainty as to whether the area will
remain open, it is not anticipated that there would be an increase
in participation in the fishery due to the opening of this area.
Therefore, because this action only proposes to re-open an area
that has previously been closed, and because no net change in
fishing effort or participation in the fishery is expected, this
action will not have a significant economic effect on a substantial
number of small entities.
As a result, an initial 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: June 23, 2010
Eric C. Schwaab,
Assistant Administrator For Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.73. paragraph (a)(4) is revised to read as follows:
Sec. 648.73 Closed areas.
(a) ***
(4) Georges Bank. The paralytic shellfish poisoning (PSP)
contaminated area, which is located in Georges Bank, and is located
east of 69[deg] W. longitude, and south of 42[deg]20' N. latitude is
closed to the harvest of surfclams and ocean quahogs, except for the
areas bounded by the following coordinates in the order stated:
(i) 41[deg] 40' N. lat., 68[deg] 25' W. long.;
(ii) 41[deg] 40' N. lat., 67[deg] 55' W. long.;
(iii) 41[deg] 39' N. lat., 67[deg] 55' W. long;
(iv) 41[deg] 39' N. lat., 68[deg] 25' W. long.; and then ending at
the first point.
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[FR Doc. 2010-15770 Filed 6-29-10; 8:45 am]
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