[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76351-76352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30874]


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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; Atlantic 
Surfclam (Surfclam) and Ocean Quahog Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; withdrawal.

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SUMMARY: NMFS withdraws the proposed rule published on June 30, 2010, 
which proposed to open a portion of the Georges Bank (GB) Closed Area 
to the harvest of surfclams and ocean quahogs. The previously published 
proposed rule will not be issued as a final rule and will not become 
effective or enforceable. The current GB Closed Area remains in effect.

DATES: The withdrawal of the proposed rule to open a portion of the GB 
Closed Area to the harvest of surfclams and ocean quahogs (75 FR 37745, 
June 30, 2010) is effective December 8, 2010.

FOR FURTHER INFORMATION CONTACT: Anna Macan, Fishery Management 
Specialist, phone (978) 281-9165, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    NMFS is withdrawing a proposed rule to open a portion of the GB 
Closed Area to the harvest of surfclams and ocean quahogs that was 
published on June 30, 2010 (75 FR 37745), with public comments accepted 
through July 30, 2010. The background and full details on the 
development of the June 30, 2011 proposed rule are contained in the 
preamble of the proposed rule and are only summarized here.
    The 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 (saxotoxins) that cause 
PSP. PSP toxins are produced by the alga, Alexandrium fundyense, which 
can

[[Page 76352]]

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 Atlantic Surfclam and Ocean Quahog 
Fishery Management Plan (FMP). 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), which is designed to test and verify that clams 
harvested from 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.
    On January 21, 2010, NMFS received a letter from the FDA requesting 
that NMFS open a portion of the GB Closed Area, as specified at 
648.73(a), to the harvest of surfclams and ocean quahogs for human 
consumption. The FDA indicated that testing of clams from the portion 
of the GB Closed Area known as Cultivator Shoal had demonstrated that 
PSP toxin levels were well below the regulatory limit established for 
public health and safety. This information contributed to the FDA's 
determination that harvesting of surfclams and ocean quahogs from this 
area is once again safe. In response to the FDA' s request, NMFS 
published the aforementioned proposed rule to solicit public comments 
on the FDA's request to open a portion of the GB Closed Area.

Basis for Withdrawal

    During the public comment period, NMFS received substantive 
comments from leading experts in PSP, who questioned the validity of 
the data on which the proposed re-opening is based, and strongly 
cautioned against re-opening the area without a rigorous testing 
protocol designed to protect the public health. Several other comments 
were also received in support of a re-opening, but with the use of the 
FDA-approved Protocol.
    Upon review of public comments, NMFS agrees that testing is 
necessary to ensure clams harvested from the area are safe for human 
consumption. The proposed rule did not propose any additional 
requirements such as a testing protocol. The Regional Administrator 
does not have the authority to implement a testing protocol under the 
existing regulations for the FMP. Therefore, NMFS is withdrawing the 
proposed rule.

Comments and Responses

    During the public comment period on the proposed rule, 11 comments 
were received. Two comments were in support of the re-opening; six 
comments supported the re-opening, but with the use of the FDA-approved 
Protocol; two comments were opposed to the action, due to lack of a 
monitoring requirement; and one comment was opposed to the re-opening 
but did not supply any significant rationale for the opposition.
    Comment 1: Two experts questioned the validity of the data on which 
the proposed opening of the GB Closed Area is based, and strongly 
cautioned NMFS against re-reopening the area without a rigorous testing 
protocol to ensure the clams harvested from the area are safe. Six 
comments were in support of the re-opening, but with the use of the FDA 
approved Protocol.
    Response: NMFS agrees that testing is necessary; however, the 
proposed rule only proposed to re-open an area, and did not propose any 
additional requirements such as a testing protocol. The Regional 
Administrator does not have the authority to implement a monitoring 
requirement under the existing regulations implementing the FMP.
    Comment 2: One commenter supported the re-opening, since the FDA 
determined that clams from the area were safe. This commenter stated 
that the industry should be permitted to harvest clams from the area. 
The commenter further supported the re-opening because a large portion, 
roughly 50 percent of the surfclam and ocean quahog biomass, is located 
in GB and opening a portion of the GB Closed Area would alleviate 
fishing pressure on areas that are experiencing declines in landings 
per unit of effort.
    Response: NMFS recognizes that re-opening a portion of the GB 
Closed Area may help address problems associated with localized 
depletion. However, given the significant health risk associated with 
opening the area without a sufficient monitoring program to ensure that 
clams harvested from the area are safe for human consumption, NMFS will 
not take action to re-open the area. NMFS does not have the authority 
to implement a monitoring requirement under the existing regulations 
implementing the FMP. NMFS would consider supporting a Mid-Atlantic 
Fishery Management Council action to open the area, provided a 
sufficient monitoring program was included as part of the action.
    Comment 3: One commenter supported the proposed opening, but 
expressed concern as to whether there were enough data to support the 
finding that ocean quahogs harvested from GB are safe.
    Response: NMFS agrees this is a valid concern. Based on the 
significant comments received on this action, and given the significant 
risk associated with opening the area without a testing protocol, NMFS 
is withdrawing the proposed rule.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: December 2, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-30874 Filed 12-7-10; 8:45 am]
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