[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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