[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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[[Page 37748]]

    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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